President Obama’s NLRB Recess Appointments Declared Invalid; Casts Doubt on Recent NLRB Decisions

On Friday, January 25, 2013, the D.C. Circuit Court of Appeals overturned President Obama’s three controversial NLRB recess appointments from last year. Generally, presidential appointments require the “advice and consent” of the Senate except in cases where the Senate is in recess. The Court found that the Senate was not actually in recess at the time the President made his appointments on January 3, 2012. Therefore, the NLRB has not had a quorum to operate since that time.

The ruling casts doubt on the validity of recent Board decisions and other actions, as well as on the NLRB’s ability to function until it has a quorum. This could have significant implications for recent and pending NLRB decisions, including those related to social media, confidentiality of workplace investigations and inappropriate workplace behavior.

There are several cases involving the NLRB appointments pending in other Circuit Courts of Appeal. Thus, it is likely that the issue will ultimately be decided by the U.S. Supreme Court. In the meantime, NLRB Chairman Mark G. Pearce has indicated that the NLRB will continue to issue decisions and operate as usual despite the D.C. Circuit Court’s ruling.

We will continue to monitor this issue as it develops in the courts and will provide updates as they occur. If you have any questions, please contact any member of the Carmody & Torrance LLP Labor & Employment Practice Group for more information: