The National Labor Relations Board (the “NLRB”) recently announced that it will seek U.S. Supreme Court review of the D.C. Circuit’s Noel Canning decision, which invalidated President Obama’s purported recess appointments of three of the Board’s five members. As we previously discussed here, the D.C. Circuit held that because the Board members were not properly appointed, the Board lacked the quorum it needed to act.In the meantime, the Board has continued to conduct business, despite the constitutional flaws to the Board members’ appointments as determined by the Court. Many employers are raising a “lack of quorum” defense in pending NLRB cases. Given the uncertainty all of this has created, it is not surprising that that the NLRB is seeking review of the Noel Canning decision.
The NLRB’s deadline to file its request for review (known as a petition for certiorari) with the Supreme Court is April 25, 2013. Once that is done, it will be up to the Supreme Court whether it hears the appeal or not. We will keep you apprised of developments as they occur.