The Decision -

In Noel Canning, a Division of Noel Corporation v. National Labor Relations Board, No. 12-1115 (U.S. Court of Appeals for the District of Columbia, January 25, 2013), a three judge panel unanimously concluded that President Obama’s asserted recess appointments in January of 2012 of three individuals to the National Labor Relations Board (“NLRB”) were invalid.

United States Supreme Court precedent dictates that the NLRB cannot function without a quorum, i.e. at least three out of the five positions of the NLRB must be validly filled. The court concluded that because the three recess appointments were invalid, the quorum necessary for valid action did not exist. Accordingly, the court concluded that a decision against Noel Canning made by a three member panel of the NLRB was invalid and unenforceable.

The Analysis -

It is beyond the scope and purpose of this Alert to examine in detail the court’s interpretation of the Constitution’s relevant provisions. However, a brief recitation of the facts and of the court’s decision is necessary to discuss the implications of this decision if it is ultimately upheld by the United States Supreme Court.

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