Author: Melissa Gonzalez Boyce, XpertHR Legal Editor

The National Labor Relations Board (NLRB) is not wasting any time seeking resolution to the messy aftermath of the Noel Canning v. NLRB decision which essentially cast doubt on the validity of hundreds of NLRB decisions. In a March 12 statement, the NLRB announced that that it will forgo an "en banc" rehearing and instead bring its challenge directly to the Supreme Court. If the Supreme Court agrees to hear the case and upholds the lower court's ruling, a year's worth of NLRB decisions could potentially be invalidated.

In Noel Canning, decided on January 25 of this year, the D.C. Circuit Court ruled that three January 2012 recess appointments by President Obama to the NLRB were invalid because the Senate was not technically in recess when he made the appointments. A president, according to the court, could only bypass the Senate and make such appointments himself when the Senate is officially in recess. As a result, the court found that the five-person board did not have the minimum three members or required quorum and, therefore, lacked the authority to render the decision.

Not surprisingly, the Noel Canning decision has led to various legal challenges regarding the NLRB's authority to render other decisions issued on or after January 4, 2012 (the time of the appointments). In fact, the stakes are quite high as the NLRB issued notable decisions last year which overturned various longstanding precedents including ones relating to the disclosure of witness statements to unions and a union's ability to collect dues after the expiration of a collective bargaining agreement.

The NLRB has until April 25 to file its petition with the Supreme Court. If the Court decides to hear the case, a decision will likely be rendered in the 2013-2014 Court term.

XpertHR will continue to follow this and other key HR compliance issues.

Additional Resources

Labor Relations > Labor Relations Overview > National Labor Relations Board

May an employer appeal a decision issued by the National Labor Relations Board?