The National Labor Relations Board’s appeal of a May 2012 order striking down its "quickie election" rule in Chamber of Commerce of the United States of America v. NLRB, Case No. 12-5250, remains pending in the U.S. Court of Appeals for the District of Columbia Circuit. However, on Tuesday the Court issued a one-page order strongly suggesting how the court will decide the case if its decision in Noel Canning v. NLRB, Case No. 12-1115 (D.C. Cir. Jan. 25, 2013), is upheld. The order states:

Upon consideration of the court’s opinion and judgment issued January 25, 2013, in No. 12-1115, et al. – Noel Canning, a Division of the Noel Corporation v. NLRB, it is

ORDERED, on the court’s own motion, that this case be removed from the oral argument calendar for April 4, 2013, and held in abeyance pending further order of the court.

In May 2012 a federal district court granted summary judgment to the U.S. Chamber of Commerce in its lawsuit against the NLRB’s "quickie election" rule.  The  Board rule amended its election case procedures to shorten the time between the filing of a petition and the conduct of a union representation election. The district court ruled that the final rule was promulgated without a proper quorum of three Board Members:

Two members of the Board [(Chairman Pearce and Member Becker)] participated in the decision to adopt the final rule, and two is simply not enough. Member Hayes cannot be counted toward the quorum merely because he held office, and his participation in earlier decisions relating to the drafting of the rule does not suffice. He need not necessarily have voted, but he had to at least show up.

As we noted two weeks ago, Noel Canning should impact decisions and rules issued by the Board during Member Becker’s term because he was a recess appointee appointed during an intrasession recess. If intrasession recess appointments are unconstitutional as set forth in Noel Canning, the Board would have had no quorum to act on the "quickie election" rules regardless of whether Hayes "participated" in the vote on the "quickie election" rule.