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President Obama to Challenge Invalid NLRB Appointees

On March 12, 2013, the National Labor Relations Board (the "Board") announced that it would challenge the court decision that invalidated three of President Obama's appointees to the Board.  

The Department of Justice and the Board will ask the Supreme Court to review the decision from January 2013 in which the U.S. Court of Appeals for the District of Columbia struck down the president's appointees.  In that decision, the Court of Appeals determined that the president had violated the Constitution in January 2012 by appointing the Board members without Senate approval.  Under the Constitution, the president has the authority to temporarily appoint government officials when the Senate officially recesses between sessions.  President Obama selected these Board members at a time when he believed that the Senate had gone into recess.  In striking down the appointments, the Court of Appeals held that the Senate was technically still in session.

As previously discussed in an earlier Client Alert, the January 2013 Court of Appeals ruling calls into question the more than 600 decisions made by the Board since January 2012.  The Board consists of five official members, who must be approved by the Senate.  Under federal law, the Board can only issue decisions when three Board members are legally appointed.  Due to the January 2013 opinion, there is currently only one Board member that has been validly appointed.  

Employers throughout the country have begun to make the argument before federal courts that Board decisions are invalid.  On March 19, 2013, a lawyer for a New Jersey nursing home asked the Philadelphia-based U.S. Court of Appeals for the Third Circuit to strike down Board decisions that applied to the nursing home.  On March 22, 2013, the U.S. Court of Appeals for the Fourth Circuit, which sits in Richmond, will hear oral arguments on this issue as well.  In fact, more than eighty companies have cited the January 2013 Court of Appeals decision as a reason to invalidate determinations made by the Board after January 2012.

Despite the Court of Appeals invalidating these three members, the Board has said that it will continue to function as normal.  The Department of Justice and the Board must submit their petition for the Supreme Court's review by April 25, 2013.  If the Supreme Court decides to hear the case, a final resolution to this situation is unlikely until the fall.

Employers which dealt with the National Labor Relations Board in 2012 or 2013, or which relied upon a Board decision from this past year, should contact a member of our Labor and Employment Group to discuss the potential ramifications of the ongoing legal action.