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Three months have passed since the D.C. Circuit Court held three appointments to the National Labor Relations Board (“Board”) were invalid in the Noel Canning decision.   The Board decided not to seek an en banc rehearing before the D.C. Circuit Court and instead filed a petition for writ of certiorari on April 25, 2013 with the United States Supreme Court.  A small percentage of these petitions are granted each year and if granted, the Supreme Court will hear the Noel Canning case on appeal.  If granted, the Board will try to convince the  Supreme Court that the Recess Appoints Clause in the Constitution allows the President to fill vacancies without the advice and consent of the Senate if the Senate is “in recess”  during the holidays throughout the year.  The D.C. Circuit Court held that appointments are only allowed under this clause when the Senate session closes for the year.  The Board’s petition contends that if this decision stands, it will shut down the President’s ability to make appointments during the many periods of Senate inactivity throughout the year.

While the Board battles this decision in court, President Obama announced on April 9 the three candidates he intends to nominate to the Board.   Their appointment will not correct this problem but it will limit the impact/duration of the Noel Canning decision.

With summer around the corner, the Supreme Court is unlikely to hear any new cases until the new term starts in October.  We will keep you updated on the progress of this case and these nominations.  For now, the Board has taken little heed of this decision and continues to decide cases and perform work as if Noel Canning was never decided.

Brody and Associates regularly advises its clients on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.