NLRB Lacks Necessary Quorum to Function

By February 20, 2013Articles

On January 25, 2013, the U.S. Court of Appeals for the D.C. Circuit made a landmark ruling in a case challenging the authority of the National Labor Relations Board. In Noel Canning v. NLRB the Court of Appeals held that the three “recess” appointments made by President Obama to the NLRB on January 4, 2012, were “invalid from their inception” because the President exceeded the scope of his authority under the Recess Appointments Clause.

As a result the NLRB’s underlying order in the Noel Canning matter was invalid as a matter of law as the Board did not have a proper quorum for conducting official business.

If upheld or unchallenged, the impact of the court’s ruling will be to deprive the Board of the quorum necessary to conduct official business, as required by New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010). In the absence of a quorum, the NLRB may not take any official action, including promulgating new regulations, engaging in enforcement proceedings, or issuing orders. Furthermore, the validity of other actions or orders taken by the NLRB may be challenged by other parties by citing the Noel Canning decision that the Board acted improperly at the time of the action or issuance of the order due to a lack of a valid quorum.

To read more about the Noel Canning v. NLRB decision, click here:

Noel Canning v. NLRB

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