In the two weeks following the D.C. Circuit Court of Appeals’ monumental decision in Noel Canning v. NLRB, Case No. 12-1115 (D.C. Cir. Jan. 25, 2013), there have been a number of developments as employers, labor groups, and employees grapple with the practical implications of the court’s holding that President Obama’s recess appointments to the National Labor Relations Board are unconstitutional. However, none have provide much, if any, guidance.

Very shortly after the decision issued, NLRB Chairman Mark Pearce released a statement disagreeing with the D.C. Circuit’s ruling and asserting that the Board believes that the recess appointments will ultimately be upheld. Accordingly, he stated that the Board will continue to perform its statutory duties and issue decisions despite the cloud over its authority.

Since then 38 Republican Senators have demanded that Members Block and Griffin resign. In addition, Republican Senators introduced three bills designed to limit the NLRB’s authority in the wake of Noel Canning: NLRB Freeze Act of 2013 (S. 180), Advice and Consent Restoration Act (S. 188), and Restoring the Constitutional Balance of Power Act of 2013 (S. 190). Given that both the Senate and the White House are controlled by Democrats, these bills have virtually no chance of becoming law and thus likely have no practical implications in the foreseeable future. 

As a result, all sides are looking for signals from the courts on how the recess appointments issue might ultimately be resolved. This week the focus was on U.S. Supreme Court Justices Ruth Bader Ginsburg and Antonin Scalia as they both turned down separate bids by HealthBridge Management LLC to appeal an order requiring it to reinstate striking nursing home center workers. HealthBridge sought a partial stay of a federal judge’s December preliminary injunction under 10(j) of the NLRA based on the controversy over the NLRB recess appointments following Noel Canning and whether the Board would be able to issue a final order. Neither Justice Ginsburg nor Justice Scalia provided a reason for rejecting the applications, but given that there was no final order by the Board involved, this development likely provides no useful insight into how they might ultimately rule on the constitutionality of the recess appointments.

As such, two weeks to digest and react to Noel Canning has provided no clarity or certainty regarding its practical implications. Rather, employers, unions, and employees remain in a quandary as they try to determine the status of past Board decisions and election certifications and to navigate the NLRB processes going forward. Indeed, even the things we do know for certain today are likely to lead to more questions and uncertainty in the near future. Accordingly, 2013 will be a dynamic year for labor law with Noel Canning setting the stage as follows:

  1. The Board will continue to hear and process petitions and unfair labor practice charges. First and foremost, the D.C. Circuit’s ruling has no effect on the NLRB’s ability to receive and process petitions and investigate and prosecute unfair labor practice charges that do not require any intermediary rulings by the Board. This means that the Agency will continue to operate as normal with the Regional offices processing petitions, holding elections, and investigating unfair labor practice charges. Similarly, administrative law judges will continue to hold hearings and issue recommended decisions. Moreover, given Chairman Pearce’s statement, the Board will continue to act and issue decisions under the presumption–correctly or incorrectly–that it has a quorum to act under New Process Steel. Thus, each new Board decision–especially precedent altering decisions–will only complicate matters further.
  2. The Board’s 2012 (and 2013) decisions still remain Board law. Not only will the agency continue to operate as normal, but it will continue to apply all 2012 and 2013 decisions as governing Board law as the Board is not required to follow Noel Canning in other cases. This includes the flurry of late year decisions affecting dues checkoff, discretionary discipline, and confidential witness statements. As a result, expect the Regional offices, the Office of the General Counsel, the ALJs, and the Board to continue to rely upon those decisions in making their determinations despite any objection by the parties as to their validity.
  3. The D.C. Circuit is going to see a lot more cases, but they may not be decided any time soon. Given that the D.C. Circuit (at least for the time being) has provided a guaranteed mechanism for overturning any decision by the current Board, any party aggrieved by a Board order is likely to file with the D.C. Circuit (all petitions for review of final orders by the Board may be filed in the D.C. Circuit in addition to the circuit where the case arose). However, after Noel Canning, the D.C. Circuit announced that it is holding all cases involving a Board decision since January 4, 2012 in abeyance. From an enforcement strategy, will the NLRB start racing respondents to the courthouse by immediately filing petitions for enforcement in other circuits immediately after issuing decisions?
  4. The Notice Posting litigation is unaffected by Noel Canning. As the Board issued the Notice Posting rules in August 2011 just prior to then-Chairman Liebman’s departure, the Board had a quorum to act when it issued its rules requiring employers to post notices about employees’ rights under the Act.
  5. But Noel Canning could impact the "Quickie Election" rules litigation and other pre-2012 decisions . The Board’s new election rules purportedly issued in December 2011 were supported by only Chairman Pearce and Member Becker, whose term expired December 31, 2011. However, Member Becker was a recess appointee appointed by President Obama in March 2010. As such, the argument can be made under Noel Canning that Becker was not appointed during an intersession recess and thus there was no quorum in December 2011 when the new election rules were purportedly passed. Moreover, if Becker’s recess appointment was unconstitutional, the decisions by the Board after Liebman’s term expired are also invalid (such as D.R. Horton involving mandatory arbitration and class claim waivers). Further, what becomes of the decisions where Becker was the deciding vote on a three-member panel even when Liebman was still there, and does it matter from a practical standpoint? In case you were wondering, all four Members at the time participated in Specialty Healthcare, so it is unaffected by Noel Canning.