On January 25, 2013, the Circuit Court of Appeals for the D.C. Circuit issued a significant blow to President Obama, ruling that he did not have the constitutional authority to appoint three members to the National Labor Relations Board (“NLRB”) in January 2012. The Court’s decision can be found here.
The NLRB was very active in 2012 and the significance of this decision cannot be understated. Potentially, the court has invalidated all of the NLRB’s 2012 decisions.
How did it get to this point? The background is quite simple. The NLRB normally has five members who are appointed by the President and confirmed by the Senate. During a Senate recess, the President can make temporary appointments known as “recess appointments.” In January 2012, President Obama made three recess appointments to the NLRB. The problem, however, is that the Senate technically was not in recess. Without the three recess appointments, the NLRB would not have had a quorum (at least three members) and would not have been able to act.
The NLRB, as would be expected, disagrees with the Court’s ruling. As stated by Board Chair Marc Gaston Pearce:
The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.
In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.
Take Away: Employers would be well advised not to disregard the NLRB’s decisions in 2012. There is much uncertainty and this issue is likely to end up before the United States Supreme Court.
