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The NLRB and all those cases…

July 29th, 2014  |  David Stephanides

As everyone knows, on June 26, the Supreme Court released its Noel Canning decision and invalidated President Obama’s January 4, 2012 appointments of three individuals to the NLRB. Those members were Terence Flynn, Richard Griffin, Jr., and Sharon Block. The Court’s holding now calls into question hundreds of Board decisions issued while those appointees were seated. The NLRB issued 331 published cases (for a complete list of the cases, click here) during the roughly 18 months that two of the appointees served on the Board – the third, Terence Flynn, resigned after five months in the face of controversy surrounding his disclosures of confidential Board information to third parties.

The current five-member Board must know decide whether to revisit each of these cases in order to preempt additional challenges. Referring to the scope of the problem now facing the Board, data provided by then-NLRB GC Richard F. Griffin, Jr. in a March, 26, 2014, Memorandum indicated there were more than 142 cases that raised issues affected by the Noel Canning case. Griffin noted there were then about 107 pending cases in the courts of appeals in which a party or the court has raised a question regarding the validity of the recess appointments. Another 35 cases, according to the Memorandum, have raised the question of the validity of Member Becker’s appointment. The GC also pointed to a Southern District of Ohio case that had been stayed since July 2013 awaiting the Noel Canning ruling — it was filed by National Right to Work on behalf of an individual seeking declaratory and injunctive relief that a Board order dismissing his petition was ultra vires.

The Memorandum also noted that the NLRB’s Section 10(j) litigation program continued to be affected by the issues raised in Noel Canning. While the validity of the president’s appointment of three members to the Board was challenged in some district courts in response to Sec. 10(j) petitions, the primary challenges were to the Board’s 2011 delegation of authority to the GC to initiate 10(j) proceedings, either at its inception or that it lapsed when the Board fell below a quorum.

The GC also said that for the first time, respondents have also mounted challenges to Regional Directors that had been appointed by the recess Board and to the President’s designation of Acting General Counsel Lafe Solomon. He noted that a district court in the Western District of Washington dismissed a 10(j) petition on the basis that Solomon’s designation was invalid under the Federal Vacancies Reform Act (FVRA). The appeal of that case was still pending in the Ninth Circuit at the time the Memorandum was issued.

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