Court of Appeals Delays Argument on NLRB’s Election Rule

Last year, a federal district court judge found that the NLRB’s election rule was invalid. The NLRB appealed that ruling, and announced that it would delay implementation of the rule pending the outcome of the appeal.

Earlier this year, the Court of Appeals set oral argument in the appeal for April 4. After setting this date, however, the Court issued its decision in Noel Canning, invalidating the recess appointments President Obama made to the NLRB after it voted on the election rule.

In a significant development earlier this week, the Court, referring to the Noel Canning decision, issued an order (pdf) removing the case from the oral argument schedule for April 4 and placing the case on hold pending further order of the Court. Significantly, the Court took this step on its own and after the U.S. Chamber of Commerce, which is a party to the appeal, drew the Court’s attention to the Noel Canning case.  The Chamber argued that the Court’s holding on recess appointments provides an additional ground to invalidate the NLRB’s election rule. When the NLRB voted on this rule, there were only two, Senate-confirmed appointees.

For the labor professional, the Court’s decision has some significant implications:

• A decision on the election rule will be delayed, thus likely leading to a delay in any potential implementation of the election rule (assuming the NLRB ultimately succeeds in its appeal).
• It suggests the potential breadth of Noel Canning, making clear that it could impact numerous decisions and NLRB actions that predate the current recess appointees serving on the NLRB (Members Griffin and Block).
• It increases the pressure on the NLRB to appeal the Noel Canning decision to the Supreme Court, so as to remove (or confirm, depending on the outcome) the uncertainty over the NLRB’s ability to act.