Yesterday in its NAM v. NLRB decision which struck down the NLRB posting rule, the D.C. Circuit observed a further possible extension of its earlier Noel Canning decision, noting that under the reasoning of Noel Canning, Member Craig Becker’s recess appointment to the NLRB would also be considered invalid. In the course of its opinion, the D.C. Circuit stated “To the extent that Noel Canning applies—we assume, without deciding, that it does—Becker’s appointment was constitutionally invalid.”
If the reasoning of Noel Canning is upheld, this puts into jeopardy all decisions made while Member Becker was one of three members of the NLRB, going back to August 2011 when Member Wilma Leibman’s term expired.
The Noel Canning cert petition remains pending at the U.S. Supreme Court.