The National Labor Relations Board (NLRB) announced on March 12 it will ask the U.S. Supreme Court to review an appeals court decision that says the appointment of two Board members is invalid.
In consultation with the Justice Department, the NLRB said it intends to file a petition by the April 25 deadline for Supreme Court review.
On January 25, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled in Noel Canning v. NLRB that President Barack Obama acted unconstitutionally when he made three recess appointments to the Board on January 4, 2012.
The Senate was in a holiday recess when Obama appointed Democrats Sharon Block and Richard F. Griffin, Jr., and Republican Terence Flynn, but it was still in pro forma session, meaning it was gaveled in and out of session every few days. Republicans and business groups claimed the appointments were invalid since the Senate was technically in session. Soda distributor Noel Canning took the issue to court in its lawsuit.
Flynn resigned his seat in July 2012 after allegations that he had inappropriately shared nonpublic Board information. That left the NLRB with four members—Chairman Mark Gaston Pearce, Block, Griffin, and Brian Hayes, the Board’s sole Republican. Hayes’ term expired on December 16, 2012, leaving the normally five-member Board with just three members. After the appeals court ruling in January, the NLRB’s quorum was thrown into question since without Block and Griffin, Pearce would be the only sitting member.
The controversy over the validity of the recess appointments prompted U.S. Senator Orrin Hatch and 39 other Republican senators to send Block and Griffin a letter on January 31 insisting that they “withdraw from all Board activities and stop drawing salaries and other benefits associated with the positions you purport to hold, as your purported appointments have been found constitutionally invalid.”
On February 13, Obama asked for Senate confirmation of Block and Griffin, but Republicans have called for him to nominate two Republicans instead.
House Republicans wrote a letter to Obama asking him to work with the Senate to fill the NLRB’s vacancies. “Until a constitutionally appointed Board is seated, uncertainty will reign in labor-management relations,” the letter, signed by House Speaker John Boehner and other top House Republicans, said.