U.S. Chamber Provides Information to Employers in Wake of Historic Ruling Invalidating NLRB Recess Appointments

Feb 1, 2013

The U.S. Chamber scored an important win for the employer community last Friday, when the U.S. Court of Appeals for the D.C. Circuit ruled in Noel Canning v. NLRB that three members of the National Labor Relations Board (NLRB) were unlawfully appointed in January 2012, and the NLRB therefore lacked a quorum to conduct official business.  The U.S. Chamber advanced this litigation on behalf of our member, the Noel Canning Corporation, and will continue to provide it our full support and backing.

The court’s reasoning in Noel Canning is very broad and calls into question not only the three most recent NLRB recess appointments, but all recent recess appointments, including other NLRB members.  In the absence of a quorum, official actions taken by the NLRB may be invalidated, including the promulgation of new regulations (such as the Ambush Election Rule, which the U.S. Chamber has challenged in a separate lawsuit), the initiation of enforcement proceedings, or the issuance of orders that may be enforced in court.  Under the D.C. Circuit’s ruling limiting recess appointments to intersession recesses, the NLRB has not had a proper quorum since August 27, 2011. 

Many employers have NLRB matters pending, impending, or recently decided.  As reported in the Wall Street Journal, the U.S. Chamber provided a memorandum this week to its members only outlining the immediate effects of the Noel Canning decision on these matters.  All affected employers should be aware, however, that, depending on the circumstances, they may need to act fast to benefit from the decision.  Employers should consult their own lawyers to determine what is appropriate for them.

For more information about this case, please visit the U.S. Chamber’s litigation center.

Lily Fu Claffee is senior vice president, chief legal officer, and general counsel of the U.S. Chamber of Commerce.  Rachel Brand is Chief Counsel for Regulatory Litigation at the National Chamber Litigation Center.

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