As we previously discussed here, the National Labor Relations Board announced last month 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 to the Board, and held that the existing three-member Board lacks the quorum required for it to legally act. The Board’s deadline to request Supreme Court review (known as a petition for certiorari) is April 25, 2013, but even if the Supreme Court agrees to hear the case, this matter will not be resolved quickly and the Board’s refusal to curtail its activities pending that resolution continues to vex both employers and unions.
In the meantime, both the President and House Republicans are seeking ways to avoid ongoing action by the Board without the required quorum. Shortly after the Noel Canning decision was issued, President Obama “re-nominated” two of the improperly-appointed Board members (Sharon Block and Richard Griffin), subjecting their nominations to Senate review. Those nominations are pending Senate approval, which may or may not be given before their terms expire at the end of Congress’ 2013 session. However, last week, President Obama made three additional nominations—two Republicans with strong histories of defending employers in labor matters, and current Board Chairman Mark Pearce, a Democrat whose term expires this August. The approval of these nominees would create the three-member quorum required for the Board to conduct business going forward, but it remains to be seen whether Mr. Pearce’s nomination will be approved by Senate Republicans who have indicated they will give his nomination added scrutiny in light of Mr. Pearce’s decision to continue purporting to have authority to act despite the Noel Canning decision. Moreover, even if all three nominees are confirmed, the issue of the validity of decisions made by the current Board will remain unresolved until the Supreme Court rules on the matter.
Given the uncertainty that will continue regarding the Board’s actions until it can establish a quorum, several House Republicans recently sponsored the Preventing Greater Uncertainty in Labor-Management Relations Act (H.R. 1120) (the “Act”), seeking to prohibit the Board from taking any action that requires a quorum until a Board constituting a quorum can be confirmed by the Senate, or at least until the Supreme Court issues a decision on the constitutionality of the President’s purported recess appointments. While the Act would prevent the current Board from taking further action that might later be found invalid by the Supreme Court, it, like the President’s recent nominations, does little to eliminate the confusion and uncertainty regarding the current Board’s actions since January 2012. In any event, the Act is not expected to pass in the Senate, and the President has already vowed to veto it. Unfortunately for employers, it appears these issues will not be resolved any time soon. We will continue to keep you up to date as developments occur.