National Labor Relations Board Members Sharon Block, Richard Griffin, and former Member Terence F. Flynn were not properly named to the Board as recess appointees by President Barack Obama at the beginning of 2012, the U.S. Court of Appeals for the District of Columbia Circuit has ruled. Noel Canning v. NLRB et al., Nos. 12-1115 and 12-1153 (D.C. Cir. Jan. 25, 2013). The three-judge panel said President Obama did not have the power to make the three recess appointments to the Board because the Senate was officially still in session at the time. This decision casts doubt upon the validity of numerous Board decisions (including two in which the Board overruled its longstanding precedent) and other actions in which the appointees have participated.

See Recess Appointments at NLRB Unconstitutional, Federal Appeals Court Rules for a more extensive discussion of this important decision. In the meantime, please feel free to contact the attorney with whom you regularly work.