Labor & Employment Developments Blog

The D.C. Circuit holds that President Obama’s January 2012 recess appointments to the NLRB were unconstitutional, arguably undermining the precedential value of controversial decisions of 2012. (Noel Canning v. NLRB, January 25, 2013.)  This panel of the D.C. Circuit agreed with the technical definition of “Recess” advanced by the Employer, finding that the Senate was not in recess at the time three members of the Board were appointed on January 4, 2012. The President’s recess appointments to the Board were therefore invalid. Consequently, the Board lacked a necessary quorum of three members and was not authorized to conduct business on the day it issued the challenged ruling. With the possibility of an en banc review by the D.C. Circuit, it is probably premature to expect the Obama administration to appoint moderate members to achieve a working quorum.