Court’s Ruling That NLRB Appointments Were Invalid Introduces Uncertainty Going Forward

Originally published January 28, 2013

The United States Court of Appeals for the District of Columbia Circuit has issued a decision invalidating the President's January 4, 2012 recess appointments to the National Labor Relations Board ("NLRB" or "Board"). The decision means that since then, at least in the District of Columbia Circuit, the Board has not had a quorum of at least three validly appointed members necessary to issue decisions. The case is Noel Canning, a Division of the Noel Corporation v. National Labor Relations Board, No.12-115 (D.C. Cir., January 25, 2013).

Following the ruling, NLRB Chairman Mark Pearce released a statement in which he said that the "Board respectfully disagrees with today's decision and believes that the President's position in this matter will ultimately be upheld." The District of Columbia Circuit also issued stay orders in other cases pending before it which raise the same recess appointment issue.