DC Circuit Puts NLRB Election Rules On Hold Indefinitely; Validity of Board Actions Involving Member Becker More in Doubt | Practical Law

DC Circuit Puts NLRB Election Rules On Hold Indefinitely; Validity of Board Actions Involving Member Becker More in Doubt | Practical Law

In Chamber of Commerce of the United States of America and Coalition for a Democratic Workplace v. NLRB, the US Court of Appeals for the District of Columbia Circuit ruled on its own motion to postpone oral argument and hold in abeyance the case reviewing the National Labor Relations Board's (NLRB) election rules. The court relied on its judgment in Noel Canning v. NLRB, where it found that President Obama's January 4, 2012 recess appointments to the NLRB were invalid, and vacated a challenged NLRB decision for lack of a three-member quorum.

DC Circuit Puts NLRB Election Rules On Hold Indefinitely; Validity of Board Actions Involving Member Becker More in Doubt

by PLC Labor & Employment
Published on 22 Feb 2013 • USA (National/Federal)
In Chamber of Commerce of the United States of America and Coalition for a Democratic Workplace v. NLRB, the US Court of Appeals for the District of Columbia Circuit ruled on its own motion to postpone oral argument and hold in abeyance the case reviewing the National Labor Relations Board's (NLRB) election rules. The court relied on its judgment in Noel Canning v. NLRB, where it found that President Obama's January 4, 2012 recess appointments to the NLRB were invalid, and vacated a challenged NLRB decision for lack of a three-member quorum.
On February 19, 2013, the US Court of Appeals for the District of Columbia Circuit issued an order in Chamber of Commerce of the United States of America and Coalition for a Democratic Workplace v. NLRB, postponing April 4, 2013 oral argument on, and holding in abeyance, the case in which it was to review the NLRB's December 22, 2011 final rule amending its election procedures (see Legal Update, NLRB Union Election Rule Held Invalid for Lack of Quorum). The court relied on Noel Canning v. NLRB, where it found that President Obama's intra-session recess appointments to the NLRB were invalid, and voided a challenged NLRB decision for lack of a three-member quorum (see Legal Update, DC Circuit Rules NLRB Recess Appointments Were Unconstitutional; Enforceability of All Recess Appointees' Decisions in Doubt). Implementation of the Board's new election procedures will be delayed for several more months, if they are not invalidated entirely. Moreover, employers affected by Board decisions and orders involving intra-session recess appointees should consider appealing those decisions to the DC Circuit with greater confidence because at least that court may postpone or deny enforcement of those Board orders.
UPDATE: On December 9, 2013, the NLRB voluntarily dismissed its appeal to the DC Circuit in this case, likely setting the stage for the full panel of Senate-confirmed Board members to revisit rulemaking to amend NLRB election procedures.