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NLRB Authority Absorbs Further Damage
By T. Christopher Bailey on May 22, 2013 at 5:37 PM

Employee Rights poster with unconstitutional across it.Intra-Session NLRB Recess Appointments Invalid: The United States Court of Appeals for the Third Circuit recently became the second federal appellate court to find one of President Obama's intra-session recess appointments to the National Labor Relations Board unconstitutional, thus raising further question of the Board's current authority. The Third Circuit held that the appointment of Craig Becker to the NLRB failed to satisfy constitutional requirements, thus invalidating a bargaining order issued by a Board panel of which Mr. Becker was a member. The Third Circuit's decision followed a D.C. Circuit decision earlier this year in which the D.C. court ruled that President Obama's three most-recent intra-session recess appointments were unconstitutional.

These decisions raise serious questions about recent and future actions by the NLRB. If President Obama's recess appointments are invalid, the NLRB presently lacks a quorum. Accordingly, unless these decisions are overturned on appeal (the Department of Justice has petitioned the Supreme Court for review of the D.C. Circuit decision), the NLRB arguably lacks authority to render any legally binding decision, other than holding labor elections or investigating unfair labor practices.

NLRB Notice Poster Requirement Unconstitutional

The Third Circuit's decision comes only days after the D.C. Circuit declared that the NLRB's Employee Rights notice poster unconstitutional. The controversial poster included information about employees' rights to form or join a union and the right to strike or establish picket lines. The poster also lists certain employer conduct which is prohibited under the NLRA. Implementation of the posting requirement was delayed several times.

What This Means For Employers

Although two federal appellate courts have held President Obama's recess appointments unconstitutional, expect no change in the business of the NLRB. Following the D.C. Circuit opinion, Chairman Pearce (the only member of the NLRB confirmed by the U.S. Senate) declared "business as usual" shortly after the decision was announced. Given the pending appeal to the Supreme Court, it is unlikely the NLRB will change its stated position.

On the other hand, the D.C. Circuit's decision could mean an end of the notice poster rule. That is, unless the NLRB seeks an appeal to the Supreme Court.

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