As we discussed at the end of January, in Noel Canning, the D.C. Circuit ruled that the recess appointments of Members Richard Griffin, Terrence Flynn (who has since resigned), and Sharon Block to the NLRB were unconstitutional because they did not occur during an intersession recess of the Senate. Without those three members, the court held that the Board did not have a quorum and could not act lawfully.

Yesterday, the NLRB announced that after consulting with the Department of Justice, it would bypass an en banc review of the Noel Canning decision before the D.C. Circuit and would instead seek review directly from the Supreme Court. Given the conservative-leaning majority on the full D.C. Circuit, the NLRB’s decision is not a surprise. Even if the Board had sought en banc review, the decision likely would have ended up with the Supreme Court anyway given the conflicting decisions among the appellate courts and the constitutional importance of the issue.

The NLRB’s petition to the Supreme Court is not unexpected. The White House previously had expressed its disagreement and NLRB Chairman Mark Pearce released a statement reasserting the Board’s position (expressed in an April 2012 unanimous decision) that courts would ultimately uphold the legality of the recess appointments. The NLRB’s made its announcement shortly after the D.C. Circuit’s decision to delay oral argument in a case involving the NLRB’s quickie election rules and the AFL-CIO’s call for the NLRB to appeal Noel Canning.

In other courts, the NLRB has expressed frustration with the Noel Canning decision and litigants’ continued attempts to use it to halt Board proceedings. Recently, the NLRB opposed 24 Hour Fitness’ argument that the Board had no authority to seek judgment against it in light of Noel Canning decision. In a brief filed last Thursday, the NLRB cited its “longstanding practice” of not acquiescing in adverse decisions by appellate courts in other cases involving different parties, particularly when the decision in question is, in the Board’s opinion, an outlier at odds with other appellate decisions.

The Supreme Court could decide not to hear the Board’s petition but given the high stakes constitutional question of the balance between executive and legislative branch powers, such a decision would be a surprise. We expect the Supreme Court to announce in the coming weeks whether it will accept the NLRB’s appeal and will continue to provide further guidance as appropriate.

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