By:  David L. Streck

Jeanette Geary filed an unfair labor practice charge alleging that a local nursing union illegally forced her and others to pay for union lobbying or lose their jobs.  Although the NLRB held that the union could require such payments, it had requested further briefs before issuing a final appealable order. 

On Monday, February  11, 2013  the National Right to Work Foundation (NRTWF) filed its petition for writ of mandamus or prohibition with the D.C. Circuit Court of Appeals , seeking an order requiring the NLRB to cease adjudicating Petitioner Geary’s case until a “constitutionally seated Board with a valid quorum is in place.”  In its petition, the NRTWF relied on both the Supreme Court’s 2010 New Process Steel decision, finding that the NLRB must have a quorum of at least three members to act, and the D.C. Circuit’s January, 2013 Noel Canning decision, finding that President Obama’s January 4, 2012 appointment of Members Sharon Block, Terence Flynn and Richard Griffin were not valid “recess” appointments under the Constitution. 

On Wednesday, February 13, 2013, in an effort to minimize the impact of Noel Canning, President Obama asked the Senate to confirm his re-nomination of Members Sharon Block and Richard Griffin.  These nominations are likely to face a heated political battle.  Further, even if the Senate confirms these re-nominations, the dispute over the validity of NLRB decisions made between January 4, 2012 and the date of said confirmations will continue.

Ultimately, the Supreme Court will likely determine the validity of both the January 4, 2012 appointments and the corresponding rulings by the post-January 4, 2012 NLRB.  Depending on the outcome of the political battle over the re-nominations and the court battle over the validity of the January 4, 2012 nominations, the NLRB may lack the power to issue final orders for months or even years.