Federal Appeals Court Ruling Calls Recent NLRB Decisions into Question

What if the decisions of the NLRB over the last year were suddenly deemed invalid?  While seemingly unlikely, a federal appeals court ruled last Friday that President Obama’s recess appointments, which date back to January 2012, were unconstitutional.  In Canning v. NLRB, 2013 WL 276024 (D.C. 2013), the court found that because the President violated the Constitution when he made three recess appointments to the NLRB, the NLRB had no authority to find that the employer, Noel Canning, violated the National Labor Relations Act by purportedly refusing to reduce to writing and execute a collective bargaining agreement with the union.

In other words, the NLRB had no quorum at the time it made this ruling and, therefore, had no authority to make a ruling or take any action.  Indeed, in order for the NLRB to take action, it must have a quorum of three members.  Here, if the President’s recess appointments are invalid, it would have left the NLRB for over one year with only one validly appointed member, which obviously is two members short of the quorum needed for taking action.

The administration is expected to appeal this decision to the United States Supreme Court.  If this decision is upheld, it would invalidate all decisions of the NLRB since January 3, 2012.  In addition, unless and until the U.S. Supreme Court decides differently, management-side labor lawyers will surely argue that all of these decisions have no effect.

If you have any questions about this decision, please contact any of the attorneys at Royal at (413) 586-2288.

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