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NLRB will not seek en banc rehearing in Noel Canning; to file petition for cert before Supreme Court

The NLRB announced March 12 that it will not seek an en banc rehearing of the D.C. Circuit’s decision in Noel Canning v NLRB. Rather, the Board will file a petition for certiorari before the U.S. Supreme Court for review of that decision, it announced today. In Noel Canning, the D.C. Circuit held President Obama’s 2012 recess appointments to the NLRB, issued on June 4, 2012 when the Senate was not actually in recess, were unconstitutional. On the day before the purported recess appointments, the Senate met in pro forma session and acted to convene the second session of the 112 Congress to fulfill its constitutional duty to meet on January 3. Thus, according to the D.C. Circuit, the Senate was not in recess when the appointments were made and, as a result, the Board did not have a quorum and could not lawfully act.

On the date that the NLRB issued the ruling in this case, it purportedly had five members. It was undisputed that two Board members had been confirmed by the Senate and were validly appointed. The remaining three members were all appointed on January 4, 2012, purportedly pursuant to the Recess Appointments Clause of the Constitution, U.S. Const, art II, Sec. 2, cl. 3. However, at the time of the President’s recess appointments of the three members, the Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma session every three business days from December 20, 2011, through January 23, 2012, but that “no business would be conducted” during those sessions.

After the D.C. Circuit issued its decision, NLRB Chairman Mark Gaston Pearce issued a statement setting forth the Board’s intention to carry out its business. “The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals. In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions,” he said.

Nonetheless, the decision has raised questions about the validity of Board’s decisions issued since the recess appointments were made. “The validity of every decision issued by the NLRB in the past year, including some of the agency’s most controversial reversals of long-standing precedent and rulemaking is now in doubt,” according to W.V. Bernie Siebert and Patrick Scully, partners in the Denver, Colorado management firm Sherman & Howard. Contrary to the Supreme Court’s 2010 New Process Steel ruling, which invalidated whole-scale the body of decisions handed down by a two-member Board, the D.C. Circuit did not expressly hold void every 2012 ruling by the agency. But several fairly significant decisions issued last year — many of which particularly riled employers — have largely lost their precedential value, at least for now.

Though the Board has declared its intent to continue marching forward, there are already signs that more litigation may be close behind. Already, at least one complaint has challenged the validity of a decision issued by the Board post-Noel Canning.

After the D.C. Circuit issued its Noel Canning decision, President Obama re-nominated Richard T. Griffin and Sharon Block as NLRB members. The two were recess appointments invalidated by the ruling.

Source: WKL&B Editorial Staff