In Noel Canning v. NLRB, the D.C. Circuit ruled on Jan. 25 that President Obama's recess appointments to the National Labor Relations Board (NLRB) were unconstitutional.    

In January 2012, while the Senate was in pro forma session, which the administration contended was actually a recess, Obama installed Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn to fill vacancies on the labor board, giving it a full contingent for the first time in more than a year. His supporters say he had no choice because Senate Republicans had blocked his appointments. Block and Griffin are Democrats who were still on the board when the appeals court ruled; Flynn is a Republican who stepped down from the board last year. The other Republican, Brian Hayes, left in December when his term ended. The term of the remaining board member, Chairman Mark Pearce, expires Aug. 27.

In the wake of the decision, the White House and Pearce both said the labor board would continue to conduct business as usual, despite calls by some Republicans for Block and Griffin to resign. Similar challenges to the recess appointments are pending in other Circuits, and the matter is expected to land in the hands of the Supreme Court.

Hayes, now an Ogletree Deakins shareholder, says the decision puts the validity of the board's 2012 actions and its appellate decision-making power going forward under “a significant cloud of uncertainty,” which he believes is unfortunate for business and unions alike.

“Sound labor-management relations are best fostered in an atmosphere that is predictable, stable and consistent,” he says.

In Noel Canning v. NLRB, the D.C. Circuit ruled on Jan. 25 that President Obama's recess appointments to the National Labor Relations Board (NLRB) were unconstitutional.    

In January 2012, while the Senate was in pro forma session, which the administration contended was actually a recess, Obama installed Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn to fill vacancies on the labor board, giving it a full contingent for the first time in more than a year. His supporters say he had no choice because Senate Republicans had blocked his appointments. Block and Griffin are Democrats who were still on the board when the appeals court ruled; Flynn is a Republican who stepped down from the board last year. The other Republican, Brian Hayes, left in December when his term ended. The term of the remaining board member, Chairman Mark Pearce, expires Aug. 27.

In the wake of the decision, the White House and Pearce both said the labor board would continue to conduct business as usual, despite calls by some Republicans for Block and Griffin to resign. Similar challenges to the recess appointments are pending in other Circuits, and the matter is expected to land in the hands of the Supreme Court.

Hayes, now an Ogletree Deakins shareholder, says the decision puts the validity of the board's 2012 actions and its appellate decision-making power going forward under “a significant cloud of uncertainty,” which he believes is unfortunate for business and unions alike.

“Sound labor-management relations are best fostered in an atmosphere that is predictable, stable and consistent,” he says.