D.C. Circuit Decision Ruling NLRB Recess Appointments Invalid
February 14, 2013 by Andrew Baker
On January 25 the D.C. Circuit Court of Appeals issued an unprecedented and sweeping decision that threatens to cripple the NLRB’s ability to render final decisions and puts hundreds of prior decisions in doubt. Even if the decision – Noel Canning v. NLRB – is eventually overturned it is certain to wreak havoc on NLRB operations for the foreseeable future.
The case arose because President Obama, unable to obtain Senate consent for his NLRB nominees, made three “recess” appointments on January 3, 2012. The Constitution grants the President unilateral authority to make temporary appointments to positions that would otherwise require Senate consent when the Senate is in “recess.”1 In January 2012, however, the Senate passed a resolution to avoid going into recess during the usual holiday break; the resolution called for the Senate to remain in “pro forma” session. Republicans and business interests who questioned the legitimacy of these recess appointments used the Noel Canning case as the vehicle to challenge Obama’s NLRB appointments.
Because the Court found that three of the four Board members sitting at the time the NLRB issued its Noel Canning decision were not “legitimate” appointees, and because the Supreme Court has ruled that the Board must have at least three members to issue valid decisions, the D.C. Circuit concluded that the Board did not have the authority to issue its decision against Noel Canning and vacated the decision.
As a result, any employer who is dissatisfied with a Board decision issued against it since January 2012, may now go to the D.C. Circuit to ask the court to vacate that decision. The D.C.
Circuit is expected to place all such cases that come before it in abeyance, pending final resolution of this issue by the Supreme Court.2 But in the meantime, while the Board’s General Counsel (who was a “true” recess appointment) will continue to issue complaints and Board ALJ’s will continue to rule on cases, there will be no finality of any decision appealed to the Board (and, therefore, a reason for employers to appeal each and every adverse decision).3
Management attorneys are already advising employers who have received an adverse decision issued since January 4, 2012, to ask the D.C. Circuit to set the decision aside. (There is no statute of limitations for petitioning a court to vacate a Board decision.) This threatens to undo some wonderful, pro-union, pro-worker Board decisions issued in the last year.
Currently, the Board has just three members; two of them are recess appointments declared invalid by the Noel Canning decision. The Board, in response to Noel Canning, issued a statement that it will carry on business as usual; but until the Noel Canning cloud is lifted, this statement sounds more rhetorical than real. The cloud can be lifted by either the Senate approving at least two Presidential nominations to the Board or by the Supreme Court overturning Noel Canning. Neither appears imminent.4
1 The first recess appointment to the NLRB was made by President Reagan in 1981. George H.W. Bush then made multiple recess appointments in 1988, and since then more often than not the Board has consisted of at least one recess appointee.
2 If the decision is ultimately upheld, it is anticipated that when the Board eventually has a legitimate quorum of three members, decisions that have been invalidated as a result of Noel Canning and are still active will go back to the Board to re-issue a decision.
3 This limbo will affect representation cases as well. While the Board will continue to conduct elections and certify new bargaining representatives, an employer may contest a Board certification by refusing to bargain, then appealing to the D.C. Circuit the Board order to bargain. Whether, and to what extent, this decision will call into question the NLRB General Counsel’s authority to act remains to be seen.
4 While there is no doubt Noel Canning is a dramatic and negative development, it is perhaps helpful to place in perspective what is happening here by recalling that recalcitrant employers always have the option of appealing a Board decision to Circuit Court, a process that even in the normal course of events can delay implementation of Board decisions for an extremely long time.
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