By Fred Wszolek
In a brief filed by the National Labor Relations Board (NLRB) the rogue three member Board told the U.S. Court of Appeals for the D.C. Circuit that it was “profoundly mistaken” in Noel Canning by finding that two of its members were unconstitutionally recess appointed by President Obama and that the Circuit Court’s decision will ultimately be reversed by the United States Supreme Court.
The Board’s brief was filed in a case known as Flex-N-Gate Texas LLC v. NLRB. The Board first argued that the appellant, an employer, waived its right to raise the constitutional issue because it did not argue the issue in its initial brief to the court. The Board then became unglued. It told the court that if it were to render a decision on the issue it “should reject Flex-N-Gate’s challenges based on Noel Canning.”
This seemingly contradictory statement was explained in the Board’s accompanying footnote. There it points out that the Board, in consultation with the U.S. Department of Justice, has filed a petition for a writ of certiorari from the D.C. Circuit Court’s decision in the U.S. Supreme Court.
In short: stay your hand because the Supreme Court’s decision in Noel Canning will reverse yours.
Professional appellate practitioners would have told the court they “respectfully disagree with its decision in Noel Canning and respectfully request that the court not act on the employer’s appeal until the Supreme Court has either denied the Board’s petition or addressed the recess appointment issue.”
But then again for a Board that defies the D.C. Circuit Court and continues to issue decisions without even waiting for other circuit courts to weigh in, it is not entirely surprising they have conducted themselves in such a shameful manner. Were it not for its arrogant unprofessionalism, we would dismiss the Board’s brief as tactless chutzpa.