Noel Canning Remains A Significant Issue Despite Recent NLRB Confirmations

Although the recent National Labor Relations Board confirmations have given us a full, five-member panel for the first time in a decade, the underlying issues surrounding the Noel Canning line of cases and President Obama’s recess appointments remain unresolved.  In addition to the legal challenges facing the recess appointments to the Board, the status of the NLRB’s Acting General Counsel, Lafe Solomon is also being called into question.

On Aug. 13, 2013, United States District Judge Benjamin H. Settle of the Western District of Washington dismissed NLRB Region 19’s petition seeking injunctive relief pursuant to section 10(j) of the Act. In reaching his determination, Judge Settle reviewed whether the NLRB had the authority to issue the complaint underlying the request for injunction.

Judge Settle agreed with the 3rd and 4th Circuit’s determinations that President Obama’s recess appointments were invalid because the Senate was not actually in “recess” when the appointments were made.  Because the appointments were invalid, the Board did not have authority to act.

The NLRB countered this logic by arguing that even if the recess appointments were improper, it had the authority to initiate legal actions pursuant to the General Counsel’s authority to delegate such actions.  Judge Settle disagreed and took it a step further finding that the appointment of Acting General Counsel Solomon was also improper and that he too lacked authority to the file the underlying complaint. Judge Settle ruled that the President’s appointment of Solomon pursuant to the Federal Vacancies Reform Act was not proper because none of the circumstances required by the FVRA were met.

Despite the recent NLRB confirmations, the underlying systemic and judicial battles with the Board are ongoing.  If you have questions concerning labor law matters or are currently facing legal issues related to the National Labor Relations Act, please contact the labor lawyers at McMahon Berger at 314 567 7350.  For over 50 years, we have assisted our clients with their questions about labor law matters and complying with the National Labor Relations Act.

Authored by John J. Marino

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