On January 25, 2013, the U.S. Court of Appeals for the District of Columbia held that the National Labor Relations Board (“NLRB”) lacked a sufficient quorum of members when it issued a finding that Noel Canning had violated the National Labor Relations Act.  See Noel Canning v. NLRB, 2013 U.S. App. LEXIS 1659 (D.C. Cir. Jan. 25, 2013).  On the date that the NLRB issued its findings against Noel Canning, three of its five members were sitting after appointment by President Obama, without Senate confirmation, under the Recess Appointment Clause of the U.S. Constitution.  The problem, according to the court, was that the “recess appointees” had been appointed while the Senate was in pro forma session, not recess, thereby making the appointments invalid.  With only two validly appointed members sitting on the NLRB, the Court of Appeals held that the NLRB lacked the necessary quorum to take any action against Noel Canning.

The court’s ruling potentially invalidates all NLRB rulings since January 4, 2012, the date of the recess appointments.  And because two of the unconfirmed appointees continue to sit on the NLRB, all NLRB decisions going forward may be called into question.  The NLRB does not appear phased by the court’s ruling, however, and continues to issue decisions.  It is expected that the NLRB will continue with business as usual until the Supreme Court weighs in on the issue.

On February 13, 2013, President Obama asked the Senate to confirm his re-nomination of NLRB Members Sharon Block and Richard Griffin.  That same day, various Republican House of Representatives leaders sent a letter to President Obama and NLRB Chairman Mark Pearce, requesting that the President nominate “four qualified individuals” to the NLRB and that the NLRB cease all activity until confirmation of the requested appointments.  While each branch of the government weighs in on this issue, employers and their attorneys are left with the challenge of interpreting the current state of labor law.

We look forward to gaining insight on the recess appointee controversy, as well as the NLRB’s recent decisions and agendas, from Lafe Solomon, Acting General Counsel for the NLRB, during DRI’s 36th Annual Employment and Labor Law Seminar, to be held May 1-3, 2013, at the Arizona Biltmore, in Phoenix, Arizona.  If you have not already registered for this exciting event, please access the registration information here to secure your spot today.

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