In Noel Canning v. NLRB, the U.S. Court of Appeals for the D.C. Circuit ruled that President Obama’s three January 2012 recess appointments to the National Labor Relations Board were invalid, resulting in an absence of a quorum for the NLRB to conduct business. The case, arising in a period of heightened political and legal battles concerning the NLRB, elevated a labor dispute to a constitutional issue headed for the U.S. Supreme Court with potentially far-reaching repercussions.
Putting the more than 600 decisions issued by the board since the January 2012 recess appointments subject to question, Noel Canning has already had substantial effects. Employers are filing petitions for review of board decisions in the D.C. Circuit, which has held board cases before it in abeyance pending further order of the court. Employers have also raised the Noel Canning defense as challenges to decisions of the board in other circuit courts. Employers have argued that Noel Canning‘s rationale applies to Craig Becker’s recess appointment, which expired in January 2012. If his appointment were invalid, that means board decisions were made without a quorum back to August 2011, when the term of Wilma Liebman expired, and also are in question.
