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Cable companies seek Supreme Court ruling on whether all NLRB agents are barred from acting due to unlawful recess appointments

By Pamela Wolf, J.D.

In a move that could put the NLRB out of business, CSC Holdings, LLC, and Cablevision New York City Corp have filed an emergency application with the Supreme Court that raises the question of whether, if the NLRB lacks a quorum and thus authority to act because of the purportedly unlawful recess appointments of three of its board members, the impotence extends all the way to all of the Board’s agents.

The companies have asked for a stay of administrative proceedings on unfair labor practice charges currently scheduled for hearing before a law judge, pending adjudication of their petition for mandamus or prohibition in the D.C. Circuit that seeks to prevent the NLRB from prosecuting ULP complaints and related proceedings, including any request for Sec. 10(j) injunctive relief. Alternatively, the companies would like the Supreme Court to treat their application as a petition for certiorari in advance of judgment, grant a stay of the NLRB administrative proceedings pending consideration of the cert petition, or at a minimum to delay determination pending the Court’s decision in NLRB v Noel Canning.

The D.C. Circuit denied the companies’ request for a stay of the NLRB proceedings and put their mandamus petition in abeyance pending determination of another mandamus petition to prevent further action by the Board and its agents. According to the companies, the D.C. Circuit’s resolution of the other mandamus request will come too late to provide the companies with any relief.

The companies argue that the issues raised in their mandamus petition below—whether the Board may lawfully prosecute the agency proceedings against them—plainly warrants Supreme Court review. The issue turns on the legality of the President’s January 2012 recess appointments, which the Court has already agreed to decide, via the Noel Canning case. Moreover, the companies assert, the question of “whether the Board’s agents may exercise the agency’s statutory authority if the Board itself cannot implicates a separate circuit split regarding the meaning of a federal statute and this Court’s decision in New Process Steel.”

Meanwhile, NLRB Chairman Mark Gaston Pearce today issued a statement commemorating the 78th anniversary of the signing of the National Labor Relations Act. “For 78 years, the National Labor Relations Board has worked to fulfill the promise made to working Americans by FDR and Congress when they enacted the National Labor Relations Act,” he said.

“Our job today, just as it has been since the Great Depression, is to ensure the right of millions of working men and women to organize and bargain collectively for better wages, benefits and working conditions, to protect companies from unfair labor practices and to resolve disputes by enforcing the law,” he continued.

“The National Labor Relations Board is proud of our on-going work to guarantee democracy in the workplace and sustain a strong and expanding middle class. Across the country today, businesses and workers are pulling together to emerge from the worst economy since the 1930s. We look forward to continuing our work to help them resolve disputes and build an economy that works for every American family.”

As to whether the agency will be able to continue on an uninterrupted path to meet its laudable goals will depend in large part on what the Supreme Court determines next term in Noel Canning and perhaps, beyond.