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FMG Law Blog Line

NLRB Recess Appointments Invalidated

Posted on: February 18th, 2013

By: Anthony Del Rio

On January 25, 2013, the U.S. Court of Appeals for the District of Columbia held that President Obama’s recess appointments of three members to the National Labor Relations Board (“NLRB”) were invalid. Noel Canning Div. of Noel Corp. v. NLRB, No. 12-1115 (D.C. Cir. 2013). Due to the the invalidity of the appointments, the Board now lacks quorum.

Fully staffed, the NLRB has five members, three from the President’s party and two from the other party. A quorum of the Board is three. More recently, due to how contentious appointments have become, the President has filled vacancies temporarily through recess appointments.

In Noel Canning, the D.C. Circuit ruled that the Senate was not in recess on January 4, 2012, when the President attempted to make the recess appointments, and, as a result, the three attempted recess appointments were invalid.

The ruling leaves a single member on the NLRB, Chairman Mark Gaston Pearce (D). Since there is only one member, the NLRB lacks quorum. If the ruling stands, the NLRB could not issue any decisions until the Senate confirms NLRB nominees. Furthermore,  the validity of the NLRB’s decisions in the last year are now called into question.

There is little doubt that the Supreme Court will hear this issue on appeal. For more information, click here.

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