We did a post recently about last weeks’s decisionof the United States Circuit Court of Appeals for the District of Columbia in Canning v. NLRB. That court found that President Obama’s January 4, 2012 appointment of three members to the NLRB was unconstitutional.
The NLRB is a five member board, so, without those three “appointments”, the NLRB did not have a quorum, and, under the court’s decision, it still does not have a quorum.
This is significant, because under the 2010 decision of the Supreme Court in New Process Steel v. NLRB, the NLRB must, by federal law, maintain a quorum of three to lawfully render a decision.
Undaunted by a mere federal court decisions, Mark Pearce, Chairman of the NLRB, (not one of the unconstitutional appointees) issued the following statement:
The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.
In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.
The Board may well have important things to do, but, without a quorum, it can’t legally do them.
Vowing to “charge ahead” is not something I would advise my client to do. Personally, I would advise obtaining three appointments confirmed by the Senate, as is contemplated by our Constitution.
But, then again, maybe that’s just me.