How do the renominations impact rules and regulations issued to date by the recess-appointed Board?
Last year, while President Obama and the U.S. Senate were deadlocked over appointments to the National Labor Relations Board, the Senate went on its holiday break and President Obama purported to use the recess appointment power under the Constitution to fill three vacancies on the Board. These appointments were challenged upon a variety of fronts, and last month in Noel Canning v. NLRB
the Federal Court of Appeals for the D.C. Circuit held that these appointments were unconstitutional. Because the Board must have a quorum in order to take action, the Court of Appeals found that “the order under review is void ab initio
,” and unenforceable.
Notwithstanding this ruling, the Board continues to conduct business as usual, and the Obama administration will likely seek review by the U.S. Supreme Court. Unless the Supreme Court accepts review of and overturns the ruling in Noel Canning, any decisions, rules, and regulations issued by the Board during the tenure of the invalid recess appointees will be subject to challenge. As the Board continues to render decisions and take other actions, it leaves employers with great uncertainty regarding whether the actions of the Board are void and unenforceable.
On February 13, 2013, President Obama renominated Sharon Block and Richard Griffin Jr. to the National Labor Relations Board. If approved by the Senate, these appointments would provide the Board with a quorum sufficient to allow it to take action, removing the cloud of invalidity which presently hangs over the Board and any actions it takes. However, as President Obama elected to renominate Block and Griffin (whose appointments were stalled in the Senate) rather than proceed with moderate candidates, the fate of their appointments remains doubtful. Their appointments are all the more unlikely to proceed in the Senate due to lack of inclusion of Republican nominees which provide an important moderating and dissenting voice to the decidedly pro-labor tilt of the National Labor Relations Board and its Acting General Counsel.