In a January 25, 2013, decision in Noel Canning v. NLRB, the U.S. Court of Appeals for the District of Columbia Circuit invalidated President Obama's three recess appointments to the current National Labor Relations Board ("NLRB"), leaving only one member on the Board.
The NLRB normally has five members, appointed by the President with the approval of the Senate. In January 2012, President Obama appointed three members to the NLRB—each of whom he had nominated in 2011—using his constitutional recess-appointment power, which allows the President to fill vacancies without the approval of the Senate when that body is in recess. The D.C. Circuit held, however, that the Senate was not in recess for purposes of recess appointments, but rather was in intrasession "adjournment" at the time of the appointments of the three NLRB members—thus rendering the appointments improper.
Under the National Labor Relations Act, a quorum of the NLRB consists of three members. Because the three appointments in 2012 were improper, the D.C. Circuit held that the Board had no quorum to transact business. The effect of this ruling is enormous: without the three 2012 appointees, the Board lacked a quorum throughout 2012 and remains without a quorum today, thus rendering all of the Board's unfair labor practice and representation-election rulings during that time subject to challenge. We will keep you informed of further developments on this subject.
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