Court Strikes Down NLRB Due to Unconstitutional Appointees

The short-term fate of the National Labor Relations Board (NLRB) is in real jeopardy as of Friday, January 25, 2013. The U.S. Court of Appeals for the District of Columbia issued a major blow against the NLRB in Noel Canning v. NLRB.

Led by Chief Judge David Santelle, the opinion was decided on purely constitutional grounds. They ruled that President Barack Obama’s three ‘recess appointments’ of NLRB Board Members in January of 2012 were not constitutionally permitted. The court ruled that the appointments were made when the Senate was not in recess and for “vacancies that did not ‘happen during the Recess of the Senate’ as required by Article II of the Constitution.” In the decision, the court cited the decision from the U.S. Supreme Court in the 2010 case New Process Steel v. NLRB, that without a proper quorum “the order under review is void ab initio (from the beginning).”

This case will most likely end up in the U.S. Supreme Court and if they side with the Court of Appeals, the judicial ruling could void every decision the NLRB has made since the last proper quorum. As of now, things look rather desolate for this government agency.

Board Chairman Mark Pearce (a non-affected appointee) released a defiant statement after the court’s decision vowing the board would “continue to perform our statutory duties and issue decisions.” If the ruling stands, this would put the NLRB in an even greater hole, creating even more cases that a future board will have to re-decide.

Lowden & Associates will stay on the developments of the NLRB’s fate and keep you posted. Stay tuned.