On Friday January 25, the D.C. Circuit ruled that President Obama’s January 2012 appointments to the National Labor Relations Board were invalid. This decision is significant because it may not only impact future NLRB rulings, but it also calls into question all of the NLRB’s activity in 2012. In addition, the Board cannot operate without at least three members. The current Board has only three members, two of which obtained their seats from the challenged recess appointments.
The Chairman of the Board, Mark Gaston Pearce, issued a statement on Friday stating that the NLRB would continue to operate and implied that the Board was preparing to mount a legal challenge to the D.C. Circuit’s ruling. “The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals,” Pearce said. As Chairman Pearce mentioned, there are currently 23 cases pending in courts around the country where the constitutionality of the appointments is being challenged. Several of these cases have either reached or are awaiting oral arguments.
The NLRB is expected to appeal the case and there is a good possibility that it will be taken up by the Supreme Court. In the meantime, the Board will continue to process cases as it has. Respondents in particular should be sure to consult with their legal representatives to preserve any objection to the proceedings based on the lack of a valid quorum of the Board.