First Quarter 2013
The U.S. Court of Appeals for the District of Columbia in Noel Canning ruled that President Obama's recess appointments of members Flynn, Block and Griffin were "invalid" because the President exceeded his authority under the Recess Appointments Clause to the U.S. Constitution. The D.C. Circuit concluded that the appointments were invalid because the President did not appoint Flynn, Block and Griffin during a recess between two sessions of Congress, but instead did so when Congress was in adjournment during a session of Congress. This is significant for employers currently involved in proceedings before the NLRB. If those three appointments are invalid, the NLRB has not issued a valid decision since 2011 when then-Chairman Liebman's term expired. Further, the NLRB potentially has not had authority to seek 10(j) relief in federal district court or to appoint regional directors to oversee the NLRB's regional offices since then-Chairman Liebman's term expired.
The Justice Department has not decided whether to seek rehearing of the case before the D.C. Circuit or whether to petition the U.S. Supreme Court for certiorari. The constitutionality of the President's recess appointments is an issue pending in other U.S. court of appeals, as well. In the meantime, the NLRB has elected to continue to process cases. Employers should be aware that NLRB decisions issued in the past year remain Board law, and administrative law judges and the Acting General Counsel of the NLRB will treat those decisions as binding. Employers who disregard the changes in NLRB precedent over the past year do so at their own peril. Employers are advised, however, to raise Noel Canning as a defense in current matters before the regions, administrative law judges, in answers to complaints, and to the NLRB itself to ensure the defense is preserved in later stages of the case.
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