The D.C. Circuit Court of Appeals declared President Obama's January 2012 recess appointments to the National Labor Relations Board (the "NLRB") unconstitutional, leaving the ongoing validity of the Board's 2012 (and possibly earlier) decisions in question. In Noel Canning v. N.L.R.B., the employer challenged the authority of the Board to issue orders on constitutional grounds. It contended that three "recess appointments" (of the five total Board members) did not conform to the Recess Appointments Clause because Congress was in session; consequently, the appointments exceeded presidential authority and were invalid.
Further action in this matter is widely anticipated. March 8 is the deadline to petition for rehearing, and the deadline to petition the U.S. Supreme Court for review is April 25. Thus far, the U.S. Supreme Court has opted to stay out of a similar dispute: it twice declined a request in In re HealthBridge Management Kreisberg to step into a labor dispute that involves a challenge to the recess appointments. Other cases are lined up to address the issue and, as jurisprudence – including a further split on the recess appointments authority and whether it applies here – develops, it is possible the Court will weigh in.
Until then, the question remains as to what impact the Noel Canning decision, and others like it, will have on the validity of the Board and its decisions since 2012 (and possibly back to 2011). The Noel Canning decision does not go so far as to declare all such decisions invalid, but, practically speaking, the 2012 decisions – including the many decisions addressing social media policies and their impact on protected Section 7 rights – will remain subject to attack until the validity of the recess appointments is resolved.