As discussed in the January 29, 2013 post below, the D.C. Circuit Court of Appeals ruled in the Noel Canning decision that President Obama’s purported recess appointments to the National Labor Relations Board were constitutionally invalid.  That decision has thrown into question each of the Board’s decisions since those appointments were made in January 2012, and employers, employees, and unions alike are anxious to have the matter resolved by the U.S. Supreme Court.

In the meantime, there have been some interesting developments.  A group of 40 Senators asked the unconstitutionally appointed Board members to step down, and several House Republican leaders sent a letter to President Obama asking him to nominate four qualified individuals to the Board to create the quorum required for the Board to act.  Additionally, bills have been introduced in both the House and Senate to freeze work by the Board until the controversy surrounding the appointments can be resolved.  Nonetheless, the Board appears undeterred by the Noel Canning decision, and continues to issue decisions that it knows are subject to legal challenge.

President Obama, on the other hand, seems to be hedging his bets.  Last week, the President officially re-nominated two of his “recess” appointees to the Board (the President appointed the Board members during a January 2012 Senate break—as opposed to during the Senate’s Recess—after their confirmations were blocked in the Senate).  Unlike recess appointments, these nominations are subject to Senate review and confirmation.  It remains to be seen whether these appointees will now be confirmed.  However, even if they are, it will not resolve the issue raised by the D.C. Circuit’s decision regarding actions taken by the Board before the appointees are confirmed.  It may, however, ensure that future Board decisions are not subject to challenge on the grounds that the Board lacked a quorum.

Another interesting issue relates to a recent Board decision that is adverse to the Service Employees International Union, commonly known as the SEIU.  After the D.C. Circuit issued its opinion invalidating the President’s “recess” Board appointments, the SEIU issued a press release expressing its disagreement with that opinion, and indicating its confidence that the appointments will be upheld.  In light of the labor-friendly opinions issued by the Board since the appointments were made, the SEIU likely was just supporting its preferred side in this dispute.  Unfortunately for the SEIU, the Board did not return the favor.  Just a few weeks later, the Board issued an order holding that the SEIU itself had engaged in an unfair labor practice.  The SEIU would surely love to challenge that opinion, but now finds itself in the unenviable position of losing a case to the same Board it declared support for only weeks before.  It remains to be seen whether the SEIU will challenge the Board’s legal authority to rule against it, but if it does, it will not be alone—dozens of challenges to the Board’s authority are now pending in courts across the country.

Despite these recent events, the issue of the Board’s authority to act remains very much a wait-and-see situation.  Unfortunately, while many predict that the issue will be decided by the Supreme Court, the administration has not yet sought the High Court’s clarification on the constitutionality of the President’s appointments.  In the meantime, everyone—employers and employees, management and unions—is in this together in a sense, waiting for the High Court to eliminate the uncertainty resulting from the Noel Canning decision and the Board’s insistence upon continuing to conduct business with its current membership.