Now What? D.C. Circuit Rules Appointments to NLRB Unconstitutional

Friday, February 1, 2013
On January 25, 2013, the D.C. Circuit Court in Noel Canning v. NLRB held that President Obama’s January 4, 2012, recess appointments of Sharon Block, Terence F. Flynn and Richard E. Griffin were an unconstitutional exercise of presidential power. President Obama moved to appoint these new NLRB members while the Senate was away for the holiday break in January 2012. The court held that the holiday break was not a “recess” within the meaning of the Constitution and, therefore, the President’s actions, going around the Appointments clause – which requires that the President’s appointment of NLRB members be with the advice and consent of the Senate – were contrary to the “purpose of the Framers in the careful separation of powers structure.”

So what are employers to do now?  The Board has issued some of the most radical decisions in its history during 2012 and employers have been trying to adjust their policies and practices to accommodate those decisions.  All decisions of the Board since January 4, 2012, may be considered to be invalid, depending on what happens on appeal in the Noel Canning case.  It is expected that the decision will be appealed to the U.S. Supreme Court and hopefully we will have some clear direction at that time.  The NLRB members do not appear to have been slowed down by the Noel Canning decision and will continue to stay on the Board.  Although the NLRB decisions for the past year currently appear to be invalid, we will probably have to wait to hear from the Supreme Court for a final decision.
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