NLRB to Ask Supreme Court if Board Members Were Lawfully Appointed

Earlier this week, the National Labor Relations Board (the “Board” or the “NLRB”) announced it will petition the United States Supreme Court to review Noel Canning v. NLRB, No. 12-1115 (D.C. Cir. Jan. 25, 2013). As previously reported, in Canning the Federal Court of Appeals for the District of Columbia held that three appointments of officers to the NLRB by President Obama were unconstitutional because they lacked the “Advice and Consent” of the Senate and were not authorized by the Constitution’s so-called Recess Appointments Clause. As a result, the Court concluded that the NLRB does not have the quorum necessary to issue decisions or otherwise act. The Canning decision arguably invalidates hundreds of opinions rendered by the Board this past year. Employers should stay tuned for updates on the NLRB’s petition, and feel free to contact an attorney in the Gibbons Employment & Labor Law Department regarding any questions about the decision in Canning or prior NLRB rulings.