The United States Court of Appeals for the District of Columbia Circuit issued an order on January 25, 2013, which struck, as unconstitutional, President Obama's recess appointments to the National Labor Relations Board ("NLRB"). Noel Canning v. NLRB (Case No. 12-1115) Typically, recess appointments to the NLRB, pursuant to the Recess Appointments Clause of the Constitution, are made during Senate recess. In its Opinion, the D.C. Circuit Court held that because the appointments at issue were not made during the intersession recess (the President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued), these appointments were invalid from their inception. Therefore, because the Board lacked a quorum of three members when it issued its decision in Noel Canning, the D.C. Circuit Court vacated the holding.
In response, Chairman Mark Gaston Pearce issued the following statement: "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."
Regardless, this is a major development that could invalidate all NLRB decisions during the time in which President Obama's appointees were on the NLRB. Below are summaries of the major decisions in 2012 that may be impacted by this ruling: