Labor Board Battles Challenges to Authority

National Labor Relations Board authority is being challenged on several fronts following the U.S. Court of Appeals for the District of Columbia Circuit’s ruling that the NLRB did not have the authority to act. A case involving a representation petition filed at the NLRB by a union seeking to represent a group of an employer’s employees is one example.

The U.S. Court of Appeals for the District of Columbia Circuit had ruled that Members Sharon Block, Richard Griffin, and former Member Terence F. Flynn were unconstitutionally named to the Board as recess appointees by President Barack Obama at the beginning of 2012. (For more information, please see our article on Noel Canning, Recess Appointments at NLRB Unconstitutional, Federal Appeals Court Rules.) Therefore, Court found the Board lacked the three-member quorum required by statute to do business. The Board announced on March 12, 2013, that it will not seek en banc rehearing of Noel Canning. Instead, in consultation with the Department of Justice, the Board intends to file a petition with the U.S. Supreme Court for review of that decision.

District 1199J of the National Union of Hospital and Health Care Employees petitioned the NLRB’s New Jersey Regional office (Region 22) to represent all full-time and regular part-time patient service technicians working in several locations of Laboratory Corp. of America Holdings. At the Board hearing, the company moved to dismiss the petition, citing Noel Canning. The Regional Director refused to dismiss the petition and directed an election.

The company then sought to enjoin the NLRB in the U.S. District Court for the District of Columbia, again citing the appeals court’s Noel Canning. The NLRB responded by requesting the injunction case be heard in New Jersey federal district court instead. On April 4, 2013, District of Columbia U.S. District Court Judge Reggie B. Walton granted the NLRB’s request and transferred the case to the federal court in New Jersey. Judge noted Walton that “there is a strong local interest in having the controversy decided in the district of New Jersey, where the affected employees are located.”

Not surprisingly, the NLRB viewed the District of Columbia federal court as unfriendly to its contention that Noel Canning was wrongly decided. Indeed, since that case was decided by the Court of Appeals for the District of Columbia, the lower federal court there is bound by the decision.

The District 1199J case is an example of the challenges employers are raising to NLRB authority since Noel Canning was decided. It remains to be seen how the New Jersey federal court will rule on the ultimate issue — whether the Regional Director’s denial of the company’s Motion to Dismiss and his direction of election are valid. However, one thing is certain: there will be many more challenges to the NLRB’s authority in the wake of Noel Canning.