The NLRB announced today that it will be seeking Supreme Court review of the DC Circuit’s Noel Canning decision. In reaching its decision, it will forgo the option of petitioning the DC Circuit for an en banc rehearing. The NLRB consulted with the Department of Justice in making its decision. The deadline for filing the petition for certiorari is April 25, 2013.
As a reminder, in its Noel Canning decision, the DC Circuit determined that President Obama’s appointments of Sharon Block, Terrence Flynn, and Richard Griffin to the Board were not valid because they were not made with consent of the Senate or during a constitutionally-defined Senate recess. Because the appointments were not valid, the DC Circuit concluded that a lawful quorum of the Board did not exist and, thus, the Board could not have lawfully exercised its adjudicative powers when issuing a decision in the Noel Canning case. Presently, Ms. Block and Mr. Flynn serve as acting members of the Board along with Chairman Mark Pearce. The constitutional flaws of their appointments have not been cured.
Neither the decision to seeking Supreme Court review nor the decision to bypass an en banc rehearing should be surprising to those that have been following the aftermath of the Noel Canning decision. While management-side attorneys have made the NLRB’s workload more onerous by making Noel Canning challenges a key component of their defense strategies, the DC Circuit continues to press the NLRB on its refusal to recognize Noel Canning as binding precedent. We will keep you abreast of developments related to Noel Canning as they arise.