The NLRB appealed the district court decision to the District of Columbia Circuit. While the board's appeal was pending, that court issued its NLRB v. Noel Canning decision holding that certain recess appointments to the NLRB had been unlawful. The Noel Canning issue was quickly asserted as an additional ground for overturning the promulgated regulation,s and the NLRB’s appeal was placed in abeyance pending the outcome of the Supreme Court’s review of Noel Canning.
In the face of these major legal entanglements and the resulting delay, the NLRB voluntarily dismissed its appeal and withdrew the promulgated regulations.
This was a tactical move designed to clear the way for again proposing the regulations.
Although it is possible that the NLRB could have attempted to rely on the record created in 2011, it is again taking comments through April 7, 2014, with reply comments due by April 14, 2014. The NLRB also plans to hold another public hearing the week of April 7, 2014.
It's a little difficult to say now whether and what kind of legal challenges may be brought because at this point we don't know what the final regulations are going to look like, but there are certainly aspects of the proposed regulations that received a great deal of attention from employers during the last time. Stay tuned.
Ronald Meisburg is a Washington, D.C.-based lawyer and co-head of management-side law firm Proskauer’s Labor-Management Relations Group.
