The U.S. Court of Appeals for the D.C. Circuit determined last week in Noel Canning v. NLRB that the recess appointments of Board Members Flynn, Block and Griffin were unconstitutional because the Senate was not technically in “recess” when they were appointed in January 2012.  That decision does not mean – as some have insisted – that the Board must stop all proceedings until new members are confirmed.  Quite the contrary.

With respect to internal Board proceedings, the decision will have no impact on the work of either the General Counsel’s Office or the Regional Offices in conducting investigations or issuing complaints.  Indeed, we should fully expect the Acting General Counsel to continue to pursue his ambitious and controversial agenda.

As recently made clear by Board Chairman Mark Gaston Pearce, the Board takes the view that the D.C. Circuit opinion applies only to invalidate the specific decision in the Noel Canning case, and it has historically viewed circuit court opinions as non-binding beyond the specific case at issue.  Accordingly, the NLRB, as constituted, will continue to issue decisions until the recess appointment question is resolved by the Supreme Court.  In this regard, the D.C. Circuit opinion is already in conflict with an earlier decision of the Eleventh Circuit in Evans v. Stephens, and the issue has been raised in more than a dozen cases pending review in other circuits.  The validity of recess appointments will be raised first at the February 5 oral argument before the Fifth Circuit in D.R. Horton v. NLRB, which concerns the similar recess appointment of Former Member Becker in 2010, and then again in March when the question concerning the appointments of Members Block and Griffin will be addressed at oral argument before the Third Circuit in New Vista Nursing and Rehabilitation v. NLRB.　 Other cases are pending throughout the circuits.

Nevertheless, the appeal process may take longer than expected because the recess appointment question may not be addressed in some or all of the cases pending on appeal.  That is because of the established principle of constitutional law that a court will not consider a constitutional challenge if the case can be disposed of on other grounds.  So, for example, the Fifth Circuit will not address the constitutional question in D.R. Horton unless it first determines that the Board was correct in deciding that class action waivers in arbitration agreements violate Section 8(a)(1) of the Act.  If, as anticipated, the Fifth Circuit rejects the Board’s legal analysis, it will have no reason to address the challenge to the recess appointments.  The same will hold true going forward with respect to many of the highly controversial Board decisions issued in the last year which are pending review in the circuit courts.

Even though the recess appointment issue has apparently been resolved in the D.C. Circuit, the future of cases pending there remains unclear.  First, the Board has until March 11 to file a petition for rehearing in banc, or until late April to file a petition for certiorari to the Supreme Court.  In the interim, the Circuit Court issued an order holding many of its the pending NLRB cases – including the appeal of the Banner Health decision – in abeyance for the foreseeable future.  That order may have a substantial impact on the appeals process inasmuch as Section 10(f) of the Act permits any aggrieved party to file an appeal in the D.C. Circuit irrespective of where the events in question took place.  While employers would naturally want to appeal to the court that has already ruled that otherwise enforceable Board decisions involving Members Block and Griffin are invalid, doing so may result in their cases not being heard on any grounds until after the recess appointments issue has been resolved.