The D.C. Circuit recently held that President Obama’s recess appointments of three members to the National Labor Relations Board (NLRB) were unconstitutional. Without these three appointees, the NLRB lacks a necessary quorum to deliver decisions. The opinion of the D.C. Circuit in Canning v. National Labor Relations Board, (January 25, 2013), was that the Board did not have authority to decide whether Canning had engaged in an unfair labor practice. This is true even though the Court found evidence to allegedly support an unfair labor practice because without the “recess appointed” Board members, the NLRB did not have a quorum to render a decision.
Therefore, this creates a question as to whether the hundreds of NLRB actions in the past year are valid and whether employers and businesses can rely on them. If your business was affected by an NLRB decision after the recess appointments, can the NLRB enforce this decision against your business? For management, this decision poses a potential defense to any NLRB actions taken by the current board. The decision may also provide a potential defense to enforcement of decisions made by this Board during the 2012 year after the three new members were appointed. However, caution is urged because other federal courts may decide this issue differently. Several years may pass before this decision is brought to the U.S. Supreme Court which has the right to decide whether or not to take the case. Proceed with caution on relying on any NLRB decisions made at that time.