The NLRB’s petition to the United States Supreme Court for review of Noel Canning is due April 25. The Supreme Court will be the most important battleground for resolution of the question whether President Barack Obama’s recess appointments of NLRB Members Sharon Block, Richard Griffin and former-Member Terence F. Flynn were constitutional.
Even after the petition for review is filed, other skirmishes over the appointments will continue. A number of them are being fought now. For instance, in a case involving Laboratory Corporation of America, the U.S. District Court for the District of Columbia recently transferred a Noel Canning dispute to the federal District Court in New Jersey based on a request by the NLRB. See Noel Canning Update: NLRB Fights Back. Now, Congress has entered the fray as a bill prohibiting the NLRB from acting at this time makes its way from the U.S. House of Representatives to the Senate.
The House passed H.R.1120, the “Preventing Greater Uncertainty in Labor-Management Relations Act,” by a 219-209 vote. The bill states, “The Board shall not appoint any personnel, nor implement, administer, or enforce any decision, rule, vote, or other action decided, undertaken, adopted, issued, or finalized on or after January 4, 2012, that requires a quorum of the members of the Board. ” These prohibitions would cease when one of three circumstances exists: (1) the NLRB has a quorum consisting of Senate-confirmed members; (2) the Supreme Court issues a decision on the validity of the disputed recess appointments; or (3) a sine die adjournment (an adjournment without another date or time to meet having been set) of the first session of the 113th Congress. (The sine die adjournment of the first session of the 113th Congress would mark the end of the recess appointments of Members Block and Griffin.) Except where the prohibitions terminate because of a Supreme Court decision, the bill also would require a Senate-confirmed quorum of the Board to act upon any of the decisions the Board made when the recess appointments were in question before those decisions may be enforced.
The bill is largely symbolic – another example of Republicans’ disdain for the current NLRB and how the White House has handled the Board nomination process. It is not expected to pass the Senate, and, in the unlikely event it does, President Obama has made it clear he will veto it.
The battle rages on.