A decision by the U.S. Court of Appeals for the D.C. Circuit has brought into question the validity of hundreds of National Labor Relations Board (NLRB or Board) decisions issued over the last year. At issue is the validity of President Obama’s three NLRB recess appointments made in January 2012. The D.C. Circuit found that President Obama made the appointments of Sharon Block, Terence F. Flynn, and Richard F. Griffin during a short intrasession recess of Congress; however, the court held that the President’s recess appointment power applies only during intercession recesses. Because at least three members of the NLRB are required to form the quorum that makes Board action enforceable, the hundreds of NLRB decisions from the last year are now cast into doubt. In the meantime, Board Chairman Mark Glaston Pearce has stated that the Board will continue to perform its statutory duties, including issuing decisions. Noel Canning Division of Noel Corporation v. NLRB.
In response to the Noel Canning decision, a group of 40 Senators sent a letter to the two remaining recess-appointed Board members urging them to resign from the Board and stop drawing a government salary. In addition, three Republican Senators have introduced legislation that would bar the NLRB from using government funds to perform any function requiring a quorum. If passed, the legislation would prevent the NLRB from issuing further decisions. The Board must decide by March 11 whether to seek rehearing before the three-judge D.C. Circuit panel that issued the Noel Canning decision or before the entire D.C. Circuit sitting en banc. Alternatively, the Board has 90 days to seek review before the U.S. Supreme Court. Meanwhile, with dozens of petitions for review of recent NLRB decisions pending, the D.C. Circuit issued a blanket order holding many of the petitions in abeyance until further order of the court. The recess appointment issue will likely be ultimately decided by the Supreme Court.