• Noel Canning? Never Heard of It!
  • March 7, 2013
  • Law Firm: Constangy Brooks Smith LLP - Atlanta Office
  • In response to the potentially devastating D.C. Circuit "recess appointment" ruling in Noel Canning, President Obama recently nominated Members Sharon Block and Richard Griffin, both Democrats whose appointments were ruled invalid in Noel Canning, to regular terms on the National Labor Relations Board. However, the Senate has yet to consider the nominations and may be in no hurry to take them up. Other purported recess appointments from past years, including that of former NLRB Member Craig BeckerĀ - appointed by President Obama in 2010 - are now under scrutiny and subject to challenge.

    Given the current composition of the NLRB and the expressed intent of Chairman Mark Gaston Pearce to continue "full speed ahead" despite the court's ruling, employers may be cursed with interesting times. The NLRB under Chairman Pearce will be issuing decisions until it stops or is stopped. Meanwhile, one employee has already filed a lawsuit, trying to stop the NLRB from acting in her case. Employers subject to NLRB jurisdiction will have to ready themselves for some continuing uncertainty.

    Ultimately, though, the NLRB will get a valid quorum back. When that happens, there is no reason to expect that any panel with a majority of members appointed or nominated by Obama will change course. In other words, employers should be prepared for a continued pro-labor tilt for at least the next four years and even beyond as members' terms continue into the administration of the next president.

    In sum, although Noel Canning has been an important short-term win for employers, the Constitution and the courts appear to be the only checks on the NLRB, absent legislative action from Congress, which is unlikely.