NLRB Recess Appointments are Invalid

The National Labor Relations Board (NLRB) is comprised of five members appointed by the President, with the advice and consent of the Senate. Traditionally, Presidents have appointed three members from their own political party and two members from the opposition party. The Constitution authorizes the President to make “recess” appointments when the Senate is not in session.

On January 4, 2012, President Obama attempted to make three recess appointments to the NLRB: Democrats Sharon Block and Richard Griffin, and Republican Terrence Flynn. Since that date, the NLRB has issued numerous decisions. One of the employers who was found to have committed an unfair labor practice challenged the validity of the NLRB decision based on the recess appointments.

On January 25, 2013, in Noel Canning Division of Noel Corporation vs. NLRB, No. 12-1115 (D.C. Cir., January 25, 2013), the D.C. Circuit Court of Appeals determined that President Obama exceeded his authority by trying to make three recess appointments because the Senate was not in recess. Therefore, the NLRB’s unfair labor practice finding against that employer was denied enforcement, and the effect of other NLRB decisions in numerous other cases is now subject to question. The NLRB has stated that it “will continue to perform our statutory duties and issue decisions”.

It is expected that the NLRB will attempt to appeal this decision to the Supreme Court. In the meantime, employers are caught in a significant dilemma: should they comply with the many pro-union and pro-employee decisions issued by the NLRB after January 4, 2013? Although one cannot predict if or how the Supreme Court may rule, the most prudent course of action for employers may be to comply with all NLRB decisions until a final determination is made.

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