Labor & Employment Law Blog

On January 25, 2013 the Court of Appeals for the District of Columbia Court of Appeals refused to enforce an NLRB ruling involving unfair labor practice allegations against employer Noel Canning.

In a dispute with Constitutional and political implications, the Court ruled that two of the three members of the NLRB panel, whose ruling was appealed, were not validly appointed. The appointment and authority centers on President Obama's Constitutional authority to appoint Board members without Senate approval when there is a Congressional recess.

The Court ruling stands to affect a broader scope of Board members' actions since the recess appointees took office in early 2012. The Court began issuing orders suspending proceedings in other NLRB-related appeals where the same recess appointment Board members participated. The full impact has yet to be determined.

The NLRB has faced quorum challenges in the recent past. The United States Supreme Court dealt with another NLRB quorum challenge in the New Process Steel case in which a two-member Board panel was declared not to be a valid quorum. That ruling caused over 600 NLRB rulings to be invalidated and remanded for review.

NLRB Chairman Mark Pearce announced soon after the Court ruling that the Board disagrees with the Court's ruling and the Board will continue operations as currently constituted. Parties with cases before the NLRB should stay tuned as these developments may affect their cases. The situation may not be clarified unless new NLRB appointees are confirmed by the Senate, which is not likely anytime soon, or the United States Supreme Court accepts review.