President Obama’s NLRB Recess Appointments Held Unconstitutional – Now What?

As you may already know, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit Court of Appeals”) recently ruled that three appointments made by President Obama to the National Labor Relations Board (“NLRB”) were unconstitutional. The D.C. Circuit Court’s ruling, however, raises many questions and concerns for employers, both union and nonunion alike.

In Noel Canning v. NLRB, the D.C. Circuit Court of Appeals held that the recess appointments of Richard Griffin, Terrence Flynn (now resigned), and Sharon Block to the NLRB were unconstitutional because they were made without the Senate’s approval and did not occur during an intersession recess of the Senate. Under the U.S. Constitution, to be valid, the President’s appointment of an individual to the NLRB must have the approval of the Senate. The Recess Appointments Clause of the U.S. Constitution allows the President to make appointments to the NLRB, and other U.S. Government agencies, without the Senate’s approval, provided the Senate is actually in recess. At the time of the President’s recess appointments of Griffin, Flynn, and Block, however, the Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012. The D.C. Circuit Court of Appeals found that the Senate was actually in session pursuant to this consent agreement. Accordingly, the D.C. Circuit Court of Appeals found that President Obama’s appointments of Griffin, Flynn, and Block to the NLRB were all made without the advice and consent of the Senate and therefore, unconstitutional.

The D.C. Circuit Court of Appeals’ holding in Noel Canning raises numerous questions for employers.  The Court’s decision could mean that all of the NLRB’s decisions over the past year are invalid since the NLRB can only take action when it has a quorum of at least three of its five members. The Noel Canning decision found only two NLRB appointments valid throughout the past year and, therefore, any decision made by the NLRB during that time lacked a quorum. While the Court did not explicitly address whether the NLRB’s decisions during this time were valid, the NLRB will likely issue guidance in the coming weeks as to how it will handle this decision.

Given that the NLRB issued a number of significant decisions during this time, such as its decisions on social media and at-will employment disclaimers, employers should be on the lookout for how the NLRB will address the Noel Canning holding. The last time the NLRB was faced with this issue, the NLRB rubber stamped all of the prior invalidated decisions once the NLRB members were all properly appointed.

Leech Tishman’s Employment Practice Group will keep employers apprised of any developments as to the NLRB’s actions regarding the Noel Canning holding. We are also available to assist employers in navigating the murky waters of the Noel Canning holding and the NLRB’s actions.

Please feel free to contact the Employment Group with any questions regarding NLRB developments, or any other employment matter.

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