NLRB Recess Appointments Ruled Unconstitutional: Hundreds of Decisions Affected and Board Unable to Act
In a decision handed down today, the U.S. Court of Appeals for the D.C. Circuit ruled that President Obama lacked the authority to install three recess appointments to the National Labor Relations Board early last year. In its opinion for Noel Canning vs. NLRB, attached here, the Court concluded that the President ignored the Senate’s “advise and consent” role by appointing three Members to the Board while the Senate remained in session.
As a result of this case, the NLRB is left with only a single properly appointed Member, meaning that it lacks the quorum of three Members needed to take formal action. This decision is reminiscent of the June 2010 United States Supreme Court case in New Process Steel, where the Court overturned more than 500 decisions issued by Board that lacked a quorum.
The immediate effect of the Noel Canning decision is significant: overturning every case decided by the Board since January 2012, including the Board’s recent decisions overturning cases that previously stood for decades discussed in our posts here and here.
We anticipate the Board will issue a statement disagreeing with the decision, and indicating that it is considering an appeal to the U.S. Supreme Court. As events continue to develop, we will of course continue to update you.