Today President Obama renominated Sharon Block and Richard Griffin to the National Labor Relations Board as part of a package of nominations sent to the Senate. Last month the D.C. Circuit Court of Appeals held in Noel Canning v. NLRB, Case No. 12-1115 (D.C. Cir. Jan. 25, 2013) that Block’s and Griffin’s January 2012 recess appointments to the NLRB were unconstitutional and that the Board lacked a quorum to act.
Both the White House and the NLRB disagree with the court’s ruling, and the Board continues to operate as if Block and Griffin were properly appointed. Although Senate Republicans have proposed legislation designed to limit the Board’s authority until the challenges to the recess appointments are fully resolved, it is very unlikely to be passed. As a result, employers, labor groups, and employees will face more and more practical challenges in interpreting the current state of labor law and in dealing with the NLRB until the recess appointments challenges are resolved.