NLRB Recess Appointment Ruling To Be Petitioned Before Supreme Court

03/12/2013 05:40 pm ET | Updated Mar 12, 2013

WASHINGTON -- The National Labor Relations Board, whose recess appointments by President Barack Obama were ruled invalid by a panel of federal judges in January, has declined to have its case heard before the larger appeals court and plans to ask the Supreme Court to take up the case.

In a brief statement Tuesday, the board said it will take a pass on what's known as an "en banc" hearing, which would allow the losing party to appeal its three-judge decision to the full court. Consulting with the Department of Justice, the board said it has instead decided to file a petition with the Supreme Court by the April 25 deadline.

In the January ruling, known as Noel Canning v. National Labor Relations Board, a panel of three Republican-appointed judges with the U.S. Court of Appeals for the District of Columbia Circuit ruled that Obama had violated the Constitution last January when he appointed three members to the NLRB, the federal agency tasked with enforcing labor law on unions and employers.

The ruling, if it holds, could undo more than a year's worth of the board's work, since it would mean the five-person board did not have a full three-person quorum when it made certain decisions. Dozens of companies have already used the ruling to claim that the board's actions benefiting workers and unions should be thrown out because the board itself was not legitimate.

More broadly, the panel's sweeping decision called into question a long tradition of recess appointments, potentially resetting the boundaries of a major presidential power.

A labor board spokeswoman said she could not comment on what the rationale was for choosing to forgo the en banc proceeding. But it's likely the board and the Obama administration would rather move the case forward and get a quicker resolution to a messy situation. Even if the labor board won in en banc, the losing party would almost certainly petition that ruling before the Supreme Court.

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