NLRB To Supreme Court: A Little Help, Please?

“In Noel Canning v. NLRB, a DC Circuit panel held that President Barack Obama improperly exercised his recess appointment power by nominating a majority of the NLRB in January of 2012 while Congress was technically still in session. The ruling calls into question every action taken by the board in the past year, including many that directly impact employers.” (Barger & Wolen)

On March 12, 2013, the National Labor Relations Board announced that it would ask the Supreme Court to step into a growing battle over the board’s legitimacy.

Late last year, a DC appeals court ruled in Canning v. NLRB that President Obama’s recess appointments to the NLRB were unconstitutional, “cast[ing] a great deal of uncertainty over past and current operations of the agency,” writes Mark Theodore at law firm Proskauer, “including:

  • The potential that all longstanding precedents which were overturned in the last few months will be restored. These include the new cases concerning witness statement disclosure and the ability of an employer to cancel dues checkoff upon expiration of the collective bargaining agreement.
  • That current cases pending before the Board will be delayed; and
  • That Board initiatives, such as the ambush election rules will be nullified.”

In plain English: total chaos for employers seeking to comply with rules established by the agency responsible for enforcing the country’s employment laws.

The direct appeal to the Supreme Court wasn’t the only option for the NLRB – the agency could have asked all judges in the DC Circuit to review the ruling – but, explains Alan Kaplinsky of law firm Ballard Spahr, it probably was the right one:

“We believe the NLRB was wise not to seek a rehearing since the chances were slim that a rehearing before the same panel or en banc would have been granted. The D.C. Circuit has eight active judges, three of whom were on the panel that decided Canning. That means the NLRB would have needed all of the five other active judges (including two Republican appointees) to vote in favor of granting a rehearing.”

Although there’s no guarantee the high court will agree to hear the case, writes Doug Hass at law firm Franczek Radelet, it’s likely the justices will grant a review:

“The Supreme Court could decide not to hear the Board’s petition but given the high stakes constitutional question of the balance between executive and legislative branch powers, such a decision would be a surprise.”

The NLRB must file its petition by April 25, 2013. Stay tuned…

The updates:

Find additional legal commentary and analysis on the lawsuit that started it tall, Canning v. NLRB, at JD Supra Law News>>