NLRB to appeal Noel Canning ruling to U.S. SC

By Chris Dickerson | Mar 13, 2013

WASHINGTON (Legal Newsline) - The National Labor Relations Board is appealing a ruling regarding President Barack Obama's recess appointments to the U.S. Supreme Court.

On Tuesday, the NLRB issued a statement saying it would not seek en banc rehearing with the U.S. Court of Appeals for the District of Columbia Circuit in Noel Canning v. NLRB. In its statement, the NLRB said it would file a petition for certiorari with the Supreme Court before the April 25 deadline.

In January, the D.C. Circuit Court of Appeals granted the petition of Noel Canning against the NLRB on the basis that the Board lacked a sufficient quorum of members when it reached a decision regarding Noel Canning. That was based on the fact that Obama appointed three of the NLRB's five members without Senate confirmation on Jan. 4, 2012, with recess appointments. But Noel Canning argued that the Senate was in pro forma session, making Obama's appointments invalid.

Last month, Congressional leaders asked Obama to take action immediately to rectify the problem.

"Until a constitutionally appointed board is seated, uncertainty will reign in labor-management relations to the determent of America's workers, employers and unions," Congressional leaders recently wrote in the letter to Obama. "Your immediate action is necessary to restore faith in the board and the Constitution's appointment process."

The letter asked Obama to nominate "four qualified individuals" and was signed by House Speaker John Boehner, House Majority Leader Eric Cantor, House Majority Whip Kevin McCarthy, Republican Conference Chairwoman Cathy McMorris Rodgers, Education and the Workforce Committee Chairman John Kline and Health, Employment, Labor and Pensions Subcommittee Chairman David P. Roe.

In a letter to NLRB Chairman Mark Pearce, the same officials asked him to have the board "immediately cease all activity" until appointments are confirmed.

"Only three things are certain if the current Board continues to issue decisions," they wrote to Pearce. "Those decisions cannot be relied upon, every losing party will be justified in filing an appeal, and no prevailing party can be assured they will ever benefit from any Board-ordered remedy. This uncertainty is not what the law anticipates and cannot be permitted."

The case arose out of a dispute between Noel Canning, a Washington state Pepsi-Cola bottler and distributor, and Teamsters Local 760. The dispute concerned the negotiation of a collective bargaining agreement. After coming to an impasse, the NLRB made a ruling which Noel Canning considered unfavorable to it. Noel Canning filed an appeal to the D.C. Circuit on both statutory and constitutional grounds.

The three-judge panel of Chief Judge David B. Sentelle and Judges Karen LeCraft Henderson and Thomas B. Griffith was unanimous. The panel said the appointments of Richard Griffin, Sharon Block and Terrence Flynn were "constitutionally invalid," thus deciding the NLRB did not have a "quorum for the conduct of business."

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