• No Surprises As Noel Canning Heads To Supreme Court
  • April 25, 2013 | Author: David P. Phippen
  • Law Firm: Constangy, Brooks & Smith, LLP - Fairfax Office
  • The National Labor Relations Board announced on March 12 that it would petition for the U.S. Supreme Court to review the Noel Canning decision, issued this past January by the U.S. Court of Appeals for the District of Columbia Circuit.

    The AFL-CIO Executive Council at its recent annual meeting called the court decision radical and sweeping in its potential reach, asserting that the situation is "intolerable" and claimed that it was all just a "sustained and vicious campaign" to derail the NLRB. The AFL-CIO has called for Democratic leaders in the Senate to use all available means to get the nominations of the current Board members (Sharon Block and Richard Griffin, whose "recess" appointments are in question as a result of Noel Canning, as well as Chairman Mark Gaston Pearce and two new Republican nominees) confirmed in the Senate and past any Republican filibuster attempt, threatening those who do not with unspecified political accountability.

    Meanwhile, in the House of Representatives, Republicans introduced and passed legislation - with a largely partisan majority - to de-fund any activity by the Board taken without a quorum of valid Members on the Board. The legislation is unlikely to get through the Senate.

    All this comes as the NLRB has finished up a "lack of quorum" clean-up that was the consequence of an earlier U.S. Supreme Court ruling that declared two-Member rulings invalid. Just this past January, the Board had "rubber stamped" the last two of hundreds of decisions that had to be re-decided by three Members. Then Noel Canning declared that two of the Board's three Members were invalidly appointed, effectively making it a one-man Board consisting of Pearce and with no authority to do much of anything.

    Among the issues that are up in the air as a result of Noel Canning are the constitutional questions surrounding the President's use of the recess appointment power and its relationship to the power of the Senate to give advice and consent on nominations. For better or worse, the outcome will also affect a number of controversial Board positions: (1) the "quickie" or "ambush" elections rule; (2) witness statement disclosure (scroll down to American Baptist Homes of the West); (3) required continuation of dues check of as part of a status quo; and (4) expansion of the employer's duty to bargain in disciplinary situations (scroll down to Alan Ritchey, Inc.); and much more.