As some of you may have seen through the various main-stream media outlets who have reported this development, in early 2012, President Obama appointed three NLRB Board members without the consent of the Senate. The appointments were purportedly made under the Recess Appointments Clause found in Article II of the U.S. Constitution. On January 25, 2013, the D.C. Circuit ruled in Noel Canning v. NLRB, 2013 WL 276024 (D.C. Cir. 2013) that Congress was not in “recess,” in the sense contemplated by the Constitution, at the time of these appointments. The Court held that President Obama thus exceeded the scope of his Executive powers in making the appointments, such that the appointments were invalid.
This would mean that the NLRB had only two legitimately appointed members throughout 2012, such that the quorum of three members required in order for the Board to act did not/does not presently exist.
The NLRB’s response to this decision has been to say that it disagrees with the D.C. Circuit, that the “no quorum” finding applies only to the unfair labor practices case that was before the Court in Noel Canning, and that it plans to continue on as if the decision never happened.
What Does This Mean to You?
First, it is anticipated that the D.C. Circuit’s opinion will be appealed by the NLRB to the U.S. Supreme Court. What hangs in the balance is whether all of the decisions issued by the Board in 2012 and continuing with its current make-up until the Supreme Court decides to take on this controversy will be void or not.
Interestingly, this is not the first time this “no quorum” issue has come up. Three years ago, the Supreme Court ruled in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010) that the Board cannot act without at least three members. Following that decision, the Board secured a quorum and then reissued many of the decisions that had been issued without a quorum. Back then, the Board only issued new decisions with respect to cases that had been on appeal or were in some phase of compliance as of the date of the Supreme Court’s 2010 decision; it did not reissue decisions in cases that already had been closed.
In the meantime, any employer who loses before the NLRB has a right to ask the D.C. Circuit, or any other Circuit where it does business, to decide whether to enforce or deny enforcement of the NLRB’s decision in its case. Employers also should raise the Noel Canning decision in all Board proceedings.
Unless the full D.C. Circuit hears the case and holds that the President did not abuse his Executive powers through the currently challenged recess appointments, the present panel decision will likely be followed in that Circuit and will remain the law of the land unless or until the Supreme Court overrules it. Other Circuits may find the decision to be persuasive and follow it, or not. Ultimately, the Supreme Court will likely have to weigh in on the issue as it did back in 2010. In the meantime, we will have uncertainty. Even if the NLRB is ultimately deemed to have no quorum, this does not necessarily mean that Board decisions issued in 2012 and following will simply disappear. If these decisions are vacated, they will likely be remanded to be decided when the Board attains a lawful quorum.
Stay tuned for further developments.