Two appellate courts have decided that the recess appointments Obama made of three NLRB members in January 2012 were made without proper legal authority resulting. therefore, with the NLRB acting without a valid quorum. Indeed, the Supreme Court has agreed to review the first such decision, Noel Canning Division of Noel Corp. v. NLRB, 705 F.3d 4901 (D.C. Cir. 2013), which held that the 2012 appointments were unconstitutional.
In NLRB v. Enterprise Leasing Co. Southeast LLC, 2013 U.S. App. LEXIS 14444 (4th Cir. July 17, 2013), the Fourth Circuit held as well that the recess appointments of members Block, Flynn and Griffin were invalid actions that exceeded President Obama’s constitutional authority. The NLRB sought a rehearing of this decision, seeking only to have the appellate court remand the unfair labor practice claims against the employer, rather than denying enforcement of the Board’s orders.
On September 5, 2013, the Fourth Circuit denied the petition filed by the NLRB for a rehearing, without comment. No. 12-1514 (4th Cir. Sept. 5, 2013). This year, the Third Circuit also held that the NLRB lacked a three-member quorum to issue unfair labor practice findings against an employer (because of President Obama’s 2010 recess appointment of Craig Becker). This quorum issue awaits Supreme Court decision during the upcoming term and will impact hundreds upon hundreds of decisions issued by the Board over the past few years.