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NLRB Ability to Decide Cases in Question After Appellate Court Invalidates President Obama’s Recess Appointments

January 25, 2013

In a significant development today, a federal appeals court in Washington D.C. struck down as unconstitutional three recess appointments made by President Obama to the National Labor Relations Board (Board). The Court held that the Senate was not in recess at the time of the appointments, making the Recess Appointments Clause of the Constitution inapplicable. In addition, the Court held that, for the Recess Appointments Clause to apply, the officer vacancy must arise during the intersession recess of the Senate, not before. That was not the case with the three Board members at issue.

The Court’s decision invalidates the January 4, 2012 appointments of Sharon Block, Terence Flynn and Richard Griffin as members of the five-person Board. Without those members, the Board lacks the requisite quorum to decide cases. Accordingly, two consequences of today’s decision are that (1) for the time being, the Board cannot render decisions, and (2) the hundreds of cases decided by the Board since January 4, 2012 are invalid. Of course, the Board will understandably ask the United States Supreme Court to review today’s decision.

We will continue to keep you updated on this case and other legal issues. If you have any questions about this development, please contact one of Honigman’s Labor and Employment attorneys listed on this alert.

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