Decisions of the National Labor Relations Board issued after
January 2012 may be invalid. On January 25, 2013, the U.S. Court of
Appeals for the D.C. Circuit, in Noel Canning v.
NLRB,1 held that President Barack Obama's
recess appointments of three National Labor Relations Board
("Board") members were unconstitutional and, therefore,
the Board lacked the three-member quorum required by the National
Labor Relations Act for the Board to act.
In the underlying proceeding, the Board issued a decision
finding that the Noel Canning Company had engaged in an unfair
labor practice. At the time of that decision, only two of the
five Board members were confirmed by the Senate; the other three
Board members had been appointed by President Obama on January 4,
2012, during a time (from December 20, 2011, until January 23,
2012) when the Senate had agreed to meet in pro forma
sessions every three business days. The President viewed that
time as a "recess" and appointed the three Board members
without Senate confirmation under the Recess Appointment Clause of
the U.S. Constitution.2
On appeal to the D.C. Circuit, the petitioner argued that the
Board's decision was unconstitutional because the appointments
of the three Board members were not valid recess appointments and,
thus, the Board had acted without a quorum and lacked the power to
issue its decision.
The D.C. Circuit agreed. It held that the appointments of
the three Board members were unconstitutional and that the Board
did not have the power to act when it issued its order. The
D.C. Circuit further held that when the President made the three
appointments, the Senate was not in "recess" but was
merely adjourned. Interpreting the term "recess" as
the time between official sessions of the Senate, the D.C. Circuit
determined that the Senate was not in "recess" at the
time of the appointments. Accordingly, the President was
unable to appoint the Board members without the consent of the
Senate. The D.C. Circuit also found that the appointments were
improper because the three vacancies did not "happen"
during a recess, but, instead, happened before the Senate
adjourned.3 Because the appointments were
constitutionally invalid, the D.C. Circuit vacated the order issued
by the Board.
This ruling not only impacts the Noel Canning Company but every
one of the Board's decisions issued since January 4, 2012. This
is particularly notable because the Board had issued several
decisions in the last year extending labor-friendly positions to
areas such as social media, employment-at-will policies, and the
confidentiality of investigations, as well as overturning some
long-standing, employer-friendly decisions of prior
Boards. Additionally, pursuant to the decision of the D.C.
Circuit, the Board would be unable to take any future action until
new members are validly appointed by President Obama and confirmed
by the Senate.
This decision is not the end of the dispute. It is likely
that the current administration will appeal the D.C. Circuit's
decision to the Supreme Court. Until there has been a final
resolution of this issue, employers should treat any decisions of
the Board as valid.
1.Case No. 12-1115 (D.C. Cir. Jan. 25, 2012).
2.That Clause reads: "[t]he President shall have Power
to fill up all Vacancies that may happen during the Recess of the
Senate, by granting Commissions which shall expire at the End of
their next Session." U.S. Const. art. II, § 2, cl.
3.The three vacancies occurred on August 27,
2010, August 27, 2011, and January 3, 2012.
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Well, at least that is the case as the Eleventh Circuit rules on communications between attorneys. Recently, I read a warning from a colleague about the expansion of liability for creditor's lawyers under the FDCPA.
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