Recent NLRB Decisions, Benefiting Employees, May Be in Jeopardy

By: Meredith Kurz

Decisions made by the top labor law board in the last thirteen may be overturned on the basis that the Board lacked a quorum in making their decisions.[1] President Obama appointed the Board members during breaks during Congressional sessions as opposed to during intersession recesses.[2]  The D.C. Circuit held that these appointments are constitutionally invalid because these appointments may only be made during the breaks between the sessions of Congress (only once per year) and that these appointments may only be made when the spots become vacant during the intersession.[3]

After the departure of Republican member Terence Flynn, the Board was left with only two Democratic members, arguably resulting in more pro-labor decisions.[4] Republican senator John Barasso of Wyoming is pushing for a bill that would not allow the Board to make binding decisions without a quorum.[5] He stated, “Until we have a final resolution from the courts, the NLRB should not be able to issue or enforce decisions that will create even more confusion and illegitimate regulations…My bill will restore clarity, order and respect for the U.S. Constitution.”[6] The Wall Street Journal reported on February 1 that the U.S. Chamber of Commerce, a pro-business coalition, is urging companies to appeal rulings against them on this basis.[7] Thus far, a decision against the soda bottler and distributor Noel Canning was invalidated because the Board lacks a quorum.[8] The Court found that in interpreting the word “recess:” “Not only logic and language, but also constitutional history supports the interpretation advanced by Noel Canning, not that of the Board. When the Federalist Papers spoke of recess appointments, they referred to those commissions as expiring “at the end of the ensuing session.”[9] The court wrote in his decision: “In short, we hold that “the Recess” is limited to intersession recesses. The Board conceded at oral argument that the appointments at issue were not made during the intersession recess: the President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued. 158 Cong. Rec. S 1 (daily ed.Jan. 3, 2012). Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception. Because the Board lacked a quorum of three members when it issued its decision in this case on February 8, 2012, its decision must be vacated.”[10]

The law firm Jones Day, which represents Noel Canning and the U.S. Chamber of Commerce, has advised its clients that they may appeal any decision made since January 4, 2012 on this ground. Decisions which may be affected by the D.C. Circuit’s finding include that of the Hispanics United of Buffalo case, which held that discussions on Facebook constitute protected, concerted activity under Section 7 of the National Labor Relations Act.[11]

[1] Melanie Trottman, Chamber Urges Businesses to Appeal Labor Board Rulings, The Wall St. J. , Feb. 1, 2013, at A3 [hereinafter Chamber Urges Appeals].

[2] D.C. Circuit holds that President Obama’s “recess” appointments to the National Labor Relations Board are constitutionally invalid, Jones Day (Jan. 2013),

[3] Noel Canning, A Div. of The Noel Corp., N.L.R.B., No. 12-1115, 2012 WL 276024 (D.C. Cir., January 25, 2013).

[4] Chamber Urges Appeals, supra note 1; Current members are Richard Griffin and Sharon Block. The Board, The Nat’l Lab. Rel. Board, (last visited Feb. 10, 2013).

[5] GOP Senator proposes bill that would freeze NLRB rules, decisions, Fox News (Jan. 31, 2013),

[6] Id.

[7]  Chamber Urges Appeals, supra note 1.

[8] Id.

[9] Canning, No. 12-1115, at *9

[10] Id. at 16.

[11] Hispanics United of Buffalo, Inc. and Carlos Ortiz, N.L.R.B., Decision and Order Case, 03-CA-027872 (Dec. 14, 2012).

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