On January 25, 2013, the U.S. Court of Appeals for the D.C. Circuit unanimously sided with Republican lawmakers and with a canning company that challenged "recess appointments" President Obama made to the National Labor Relations Board (NLRB) on January 4, 2012. The court declared the president's appointment of three board members to the NLRB invalid under the Recess Appointment Clause of the U.S. Constitution. The import of this decision is that all NLRB decisions issued since January 4, 2012 likely are invalid. Noel Canning v. NLRB (January 25, 2013), U.S. Court of Appeals for the D.C. Circuit Case No. 12-1153. This court decision also means that any NLRB resolution issued since January 4, 2012 may be invalid because the board lacked a quorum when passing the resolution.

This case arose from Noel Canning's challenge of an NLRB decision issued on February 8, 2012, which determined that Noel Canning had engaged in an unfair labor practice when it refused to execute a written collective bargaining agreement incorporating terms agreed upon during negotiations with its union. The court first determined whether Noel Canning had valid statutory grounds to challenge the board's decision before reaching the constitutional issue of President Obama's appointments to the board on January 4, 2012. The court found the board's decision was supported by substantial evidence. However, because the three board appointments made by the president on January 4, 2012 were ruled invalid, the board lacked a quorum to issue its decision, necessitating vacation of its order.

There were two bases for the court's decision. First, the court held that an appointment of a board member during "the recess" is limited to intersession recesses. In this case, the board conceded at oral argument that the appointments at issue were not made during the intersession recess; the president made his three appointments to the board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued.

The second basis for the court's decision was that the relevant vacancies did not arise during an intersession recess of the Senate. Rather, the three board seats the president attempted to fill on January 4, 2012 without approval by the Senate had originally become vacant on August 27, 2010, August 27, 2011 and January 3, 2012, respectively. In none of those cases did the vacancy arise during an intersession recess. Therefore, according to the court, the president lacked authority to make the three appointments to the NLRB without approval by the Senate. On those grounds, the court vacated the NLRB's decision issued in this case.

We expect the Justice Department will likely appeal this decision. However, if the decision stands, it will have significant ramifications, as it in effect means that all NLRB decisions issued since President Obama's January 4, 2012 appointments to the NLRB are invalid.