Update: On June 26, 2014, the U.S. Supreme Court affirmed the judgment of the U.S. Court of Appeals for the District of Columbia Circuit finding President Obama’s January 4, 2012 recess appointments to the National Labor Relations Board unconstitutional. Consequently, all decisions, published and unpublished, absent settlement during the interim, must be reconsidered. Additionally, official actions made by the unconstitutional Board including Regional Director appointments presumably must be reconsidered as well.
On January 25, 2013, in Noel Canning v. NLRB, 2013 WL 276024, a unanimous three member panel of the U.S. Court of Appeals for the District of Columbia held that the Recess Appointments Clause, Article II, Section 2, Clause 2 of the U.S. Constitution is limited to congressional intersession recesses. Consequently, the recess appointments of National Labor Relations Board Members Griffin and Block who participated in deciding Noel Canning, A Division of the Noel Corp., 358 NLRB No. 4 (Feb. 8, 2012) are void. And, because the Board is now comprised of only three members, two of whom are invalid recess appointees, the Board lacks a quorum as required by New Process Steel v. NLRB, 130 S.Ct. 2635 (2010). A court majority also held that recess appointments can only be made for vacancies occurring during a congressional intersession recess. All recess appointments to the NLRB during the Obama Administration have been intrasession rather than intersession appointments. Consequently, all such appointments are void.
The chart below tracks published and non-published decisions of the National Labor Relations Board beginning with President Obama’s first void intrasession recess appointments on March 27, 2010. The voided decisions are the result of both Noel Canning and New Process Steel:
Last NLRB Watch: Obama Labor Board Seeks to Maximize Union Boss Power
Next NLRB Watch: What is Past is Prologue…or…It Never Ends?