The issue in the Noel Canning case will likely end up in the U.S. Supreme Court. The President will argue that he is unable to fulfill his chief constitutional obligation to “take care that the laws be faithfully executed,” or that the interpretation could even pose national security risks. The court answered this issue by stating that if Congress wished to alleviate such problems, it could certainly create Board members whose service extended until the qualification of the successor, or provide for action by less than the current quorum, or deal with the problems in some other fashion, noting that the executive branch has provided for the temporary filling of a vacancy by statute allowing an “acting officer” to perform all the duties and exercise all the powers of the office.
The case is a classic dispute involving the so-called “separation of powers” between the executive, legislative, and judicial branches of our government. In the Noel Canning case, the District of Columbia Circuit ruled in favor of the legislative branch, citing the laws creating the NLRB as well as the Constitutional provisions providing for certain appointments to be only with the “advice and consent” of the Senate.
Since the NLRB is allowed to issue decisions only with a quorum of at least three members, the Noel Canning decision leaves the Board with only one validly appointed member, thus currently shutting it down. The court’s ruling would thus not only invalidate the NLRB’s ruling in Noel Canning, but hundreds of other NLRB decisions issued by the Board for more than a year.
It is hard to tell which branch of government will act first; the courts, in some type of appellate role, or Congress, in some type of amendment to the Labor Act, or some sort of agreement worked out between the parties for new appointments to the NLRB. For example, there is a possibility that the President and the Senate can work out an agreement to have two Democrats and two Republicans on the Board, thus establishing a quorum. Such a two-two split would allow the Board to function normally in non-controversial cases, but prevent controversial rulings. Or, perhaps such an agreement will not be worked out, and the NLRB will simply be shut down for an indeterminate period of time, at least pending an appellate ruling or the Administration’s ability to get the “advise and consent” of the Senate to new appointments.
The question then arises what actions the NLRB can take, in light of the fact that the Board in Washington does not have a functioning quorum. The General Counsel of the NLRB has been delegated authority to take many actions, including the seeking of temporary court injunctions, and presumably the many NLRB regional offices across the country will continue to operate, including holding elections and the possibility of issuing complaints and litigating cases before administrative law judges. But any appeal of such matters to the Board in Washington, and enforcement of such decisions by the courts may be postponed until a quorum at the Board is established.
The same concept would seem to apply to representation elections. That is, a union could file an election petition and an election could be held and the question would arise whether the election could be certified where an appeal of the representation issue was made to the NLRB in Washington. It likely could not be so certified under the court’s ruling. The ruling may also provide another legal basis for attacking the Board’s “quickie election” rule, as one of the members making the rule was a recess appointment.
Some initial answers to the above questions quickly followed the ruling, as White House Press Secretary Jay Carney has announced that the ruling would not affect the Board’s operations, referring other questions to the Justice Department. NLRB Chairman Mark Pearce has announced the Board would keep conducting its business, noting that the rule applies only to a single case in a single circuit, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals. Thus, one interpretation of the current situation is that the Board will continue to carry out its normal functions, and simply ignore the ruling. The issue is more complex than that, however, as virtually all NLRB final rulings can be appealed to the District of Columbia Circuit, the court that issued the Noel Canning ruling. Therefore, if the ruling stands, every NLRB final ruling could be set aside by an appeal to the District of Columbia Circuit, at least until the NLRB quorum is legally established.