By Steven M. Swirsky and D. Martin Stanberry

Will Congress shut down the National Labor Relations Board?  In a narrow, 219 – 209 vote this past Friday, the United States House of Representatives passed a bill that would strip the National Labor Relations Board (“Board”) of the authority to take any substantive action until the Supreme Court decides Noel Canning v. NLRB, 2013 WL 276024, (D.C. Cir. 2013) or the Senate confirms a quorum of members to the Board (as constituted, the Senate would have to confirm at least 2 new members to establish a quorum).  As we reported, in Noel Caning, although the Court of Appeals for the District of Columbia held that President Obama’s recess appointments to the NLRB were unconstitutional and that the Board lacked authority to Act, the Board has continued to decide cases.

The bill, titled “Preventing Greater Uncertainty in Labor-Management Relations” is very similar in purpose to one introduced in January by Senator Mike Johanns (R-Neb.).  Given the Senate’s Democratic majority, Senator Johann’s bill died in committee, and thus, was never brought up for a vote in the Senate. Now that the House of Representatives has passed HR1120, the Senate may have no choice but to consider the issue.

Even if the Democratic-controlled Senate does pass the bill (which is unlikely), President Obama has signaled that he would veto the legislation rather than concede that his recess appointments were invalid or that the Board lacks the authority to act as currently constituted. Since the bill was only narrowly passed in the House of Representatives, it seems improbable that it would be able to garner the necessary two-thirds majority vote in both houses to override a presidential veto.

Absent a change in the composition of the House or Senate, there appears to be little chance that this issue will be resolved through Congressional action.  Though President Obama has nominated three additional candidates to fill the Board’s vacancies, there is no indication when or if the confirmation process will go forward in the Senate, let alone confirm the President’s nominees. As a result, employers may have no choice but to wait and see whether and how the Supreme Court would resolve the matter.  The Board’s petition for certiorari, which must be filed before the Supreme Court can decide whether it will review Noel Canning, is due by the 25th of this month.

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