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NLRB Update

02.04.2013

On Friday, January 25, 2013, the U.S. Court of Appeals for the D.C. Circuit provided some welcome relief to employers struggling with the increasingly aggressive posture of the National Labor Relations Board (the "NLRB"). In previous Newsflashes, we discussed how "very active" the NLRB had become since President Obama’s first election win and out thoughts that the aggressive posture would continue during the next four years. Last January, we also reported that many had questioned the validity of President Obama’s recess appointments to the NLRB and how the resolution of that issue would need to come from the courts.

As background, you should know that the United States Constitution requires that members of the NLRB are to be appointed by the President of the United States "by and with the Advice and Consent of the Senate." President Obama was unable to get the consent of the Senate last year, and as a result, he sought to make the appointments under the Constitution’s Recess Appointments Clause, which provides that the President shall have power to fill vacancies during the recess of the Senate, by granting commissions which shall expire at the end of the Senate’s next session. The key requirement of this recess power, however, is that the Senate must be in "recess".

At least one court has now ruled that the Senate was not in recess at the time president Obama made the appointments, and as such, the appointments are void. This matter will certainly be appealed to the United States Supreme Court, whose decision will be widely followed. As explained in prior Newsflashes, the makeup of the NLRB is important to all employers, even if the employer is non-union. Many of the most recent and most controversial decisions or opinions of the NLRB, such as those relating to employee handbook language and confidentiality agreement language, relate to both union and non-union employers’ interference with an employee’s right to engage in concerted activity. As such, the decision by the U.S. Court of Appeals for the D.C. Circuit is an important one.

The ripple effect of the decision is that - if the appointments made last year are void, the NLRB does not have a sufficient number of members to act – and, as such, the 300 plus decisions and opinions of the NLRB since the date of the appointments may also be void or voidable. It will be interesting to see if the NLRB is less aggressive as this issue makes its way to the Supreme Court. NLRB Chairman Mark Pearce insists that despite this recent decision, "the board will continue to perform [its] statutory duties and issue decisions." As always, we will keep you posted.

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