The U.S. Court of Appeals for the D.C. Circuit determined last
week in Noel Canning v. NLRB that the recess appointments
of Board Members Flynn, Block and Griffin were unconstitutional
because the Senate was not technically in "recess" when
they were appointed in January 2012. That decision does not
mean – as some have insisted – that the Board must stop
all proceedings until new members are confirmed. Quite the
contrary.
With respect to internal Board proceedings, the decision will
have no impact on the work of either the General Counsel's
Office or the Regional Offices in conducting investigations or
issuing complaints. Indeed, we should fully expect the Acting
General Counsel to continue to pursue his ambitious and
controversial agenda.
