Three weeks after the D.C. Circuit invalidated President Barack Obama’s January 2012 recess appointments to the National Labor Relations Board (NLRB), we can provide some better perspective on what the decision means for employers, both those affected by recent NLRB decisions and those just monitoring developments going forward. As we discussed at the end of January, in Noel Canning, the D.C. Circuit ruled that the recess appointments of Members Richard Griffin, Terrence Flynn (who has since resigned), and Sharon Block to the NLRB were unconstitutional because they did not occur during an intersession recess of the Senate. Without those three members, the court held that the Board did not have a quorum and could not act lawfully.
Shortly after the court’s decision, the White House expressed its disagreement and NLRB Chairman Mark Pearce released a statement reasserting the Board’s position (expressed in an April 2012 unanimous decision) that courts will ultimately uphold the legality of the recess appointments. GOP Senators also reacted quickly, sending a letter to the NLRB demanding that Members Block and Griffin resign. Other Republican Senators have introduced essentially symbolic legislation that would limit the NLRB’s ability to continue working in the wake of Noel Canning. With Democrats in control of the Senate, and President Obama in the White House, none of the bills have any chance of passing.
Judicial challenges to the NLRB’s authority, and the vitality of its 2012 decisions, may have more practical effect in the near term. The NLRB has not yet filed any appeals in the Noel Canning case, and has declined to comment on whether one is forthcoming. Other challenges are proceeding, however, as we discuss below. While we do not yet know the full impact of Noel Canning, employers should keep these issues in mind as we move into the spring:
We expect further developments in the Noel Canning case, and on Capitol Hill, and will continue to provide further guidance as appropriate.