Wyatt Employment Law Report

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Court of Appeals Rules Recess Appointments to the NLRB Were Invalid

By Edwin S. Hopson

On January 25, 2013, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in Noel Canning v. National Labor Relations Board, et al., No. 12-1115, holding that the order issued by the NLRB in the case was invalid in that the NLRB lacked a quorum of properly appointed members.  On January 4, 2012, President Obama had purported to recess-appoint new members to the five-member board so as to permit the NLRB to have a quorum and continue to operate.  At the time, Republican members of the Senate objected, contending that the Senate was not in recess.  The NLRB’s decision in Noel Canning was issued after the January 4, 2012 recess appointments.

The D.C. circuit court, in an opinion by Chief Judge Sentelle, stated, in part:

“In short, we hold that ‘the Recess’ is limited to intersession recesses. The Board conceded at oral argument that the appointments at issue were not made during the intersession recess: the President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued. 158 Cong. Rec. S1 (daily ed. Jan. 3, 2012). Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception. Because the Board lacked a quorum of three members when it issued its decision in this case on February 8, 2012, its decision must be vacated. See 29 U.S.C. § 153(b); New Process Steel, 130 S. Ct. at 2644–45.”

The effect of this decision will be wide-spread.  Every Respondent against whom the NLRB issues an unfavorable decision has the right to appeal it to the D.C. Circuit (as well as the circuit court in which the Respondent does business).  Therefore the validity of virtually all the NLRB’s decisions going forward are placed in doubt as to their validity.

The fastest and best solution would be for the Democrats and Republicans in the Senate to put together a consensus package of nominees to be quickly confirmed and put in place at the NLRB.  As it stands, there is only one member (out of 5 slots) filled by a properly confirmed board member, Chairman Pearce.