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Within hours of the U.S. Court of Appeals for the DC Circuit decision finding that the Jan. 4, 2012 recess appointments of three members to the National Labor Relations Board (NLRB) were invalid, NLRB Chairman Mark Gaston Pearce responded. In a statement issued by his office, Pearce said, "The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.
In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions."
This issue here is that the court ruled that the appointment of three NLRB board members was invalid because the Senate was not in recess. President Obama used recess appointments and these appointees were not vetted by the Senate. Since the Senate was not in recess, there could be no recess appointment and these members were not have been appointed in this manner.
The impact of this is significant in cases other than Noel Canning.
The decision has broad impact for several reasons. It questions the validity of all Board decisions since Jan. 4, 2012. It opens the door to for all current cases to question the quorum question and create an opportunity to challenge on that basis. Every Board decision may be appealed to this same court. With this ruling, the appellate court will remain consistent with its Noel Canning decision.
It seems as though the Board will continue working even with the appellate court holding against it making decisions. Certainly, this matter is headed to the Supreme Court.