The fallout from Noel Canning has been felt far and wide. The DC Circuit Court’s January 25, 2013 decision certainly put all NLRB decisions made since January 4, 2012 (the date Members Block and Griffin received their recess appointments) in jeopardy. All cases on appeal to the DC Circuit involving panels which included Block and Griffin have been held in abeyance pending final appeals on the case.
One open question was whether Noel Canning also put into question the validity of decisions involving Member Craig Becker, who also received a recess appointment. During a portion of Member Becker’s tenure, there were only three Board Members. If Member Becker’s appointment was invalid, then those decisions and actions by the Board also would be put into question. Member Becker voted to change the representation election rules. Those rules were invalidated for lack of quorum based on the fact that Member Hayes (whose appointment was valid) did not vote. If Member Becker’s appointment ultimately is held to be invalid then the ambush election rules would not be valid as the NLRB did not have a quorum at the time.
The ambush election case is on appeal to the DC Circuit. Oral argument was scheduled for April 2013. The appeals court decided to hold the election regulations case in abeyance until the legal issues surrounding the recess appointments are sorted out. The Court’s order issued yesterday in Chamber of Commerce et al. v. NLRB, 11-cv-02262 (February 19, 2013).
We recently held a webinar on the impact of the Noel Canning decision. For those interested, they can replay the entire webinar using these instructions:
– Go to university.learnlive.com/proskaueronlineevents
– Login with your existing username and password
– If you do not have a username and password, please select the “New Student Registration” button to create a new account. You will need to enter the Proskauer Company Code: 9736529
– Select the “Catalog” tab at the top of the page. Select the “Enroll” button to the right of the course titled: Labor Relations Update: Live! The Latest at the NLRB
— Noel Canning and Beyond Archive
– Select the “Continue” button in the pop up.
– Select the “Launch” button to open the course and begin watching. Please be sure to allow pop-ups and click the boxes that appear on the screen to receive CLE cred
Of course, we will be monitoring developments on this issue and will update as necessary.