National Labor Relations Board Members Sharon Block, Richard Griffin, and former Member Terence F. Flynn were unconstitutionally named to the Board as interim appointees by President Barack Obama at the beginning of 2012, the U.S. Court of Appeals for the District of Columbia Circuit has ruled. Noel Canning v. NLRB et al., Nos. 12-1115 and 12-1153 (D.C. Cir. Jan. 25, 2013). The three-judge panel said President Obama did not have the power to make the three recess appointments to the Board because the Senate officially was still in session at the time and therefore they were not made during “the recess” that takes place between sessions, as required by the Constitution. This decision casts doubt on the validity of many recent Board decisions and other actions in which the appointees participated. Following this decision, Board Chairman Mark Gaston Pearce presently is the only validly nominated and confirmed member, which means the Board appears to lack the three-member quorum required by statute to do business.

The Board announced on March 12, 2013, that it will not seek en banc rehearing of Noel Canning. Instead, in consultation with the Department of Justice, the Board intends to file a petition with the U.S. Supreme Court for review of that decision. In the meantime, however, the D.C. Circuit’s ruling may prove troublesome for the Board, especially because the National Labor Relations Act allows parties aggrieved by a final order of the NLRB to seek review in the D.C. Circuit, in addition to other courts of appeals as may be appropriate under the Act.

As of this writing, President Barack Obama has nominated (but the Senate has yet to confirm) Board Chairman Pearce, whose current term ends on August 27, 2013, and two management-side employment attorneys, Harry I. Johnson, III and Philip A. Miscimarra. The nominations of Members Block and Griffin were previously sent to the Senate.