In a decision that could potentially invalidate hundreds of Board decisions, the U.S. Court of Appeals for the D.C. Circuit has held that President Obama’s three recess appointments to the NLRB were unconstitutional. In the decision, Noel Canning v. NLRB, the court vacated an unfair labor practice determination on the grounds that the Board lacked a legitimate quorum when it issued its decision.
In 2010 the U.S. Supreme Court held in New Process Steel that the Board must operate with at least three sitting members. Facing the impending loss of a quorum at the Board, the President appointed Sharon Block, Richard Griffin, and Terence Flynn to the agency in January 2012 while the Senate was still holding brief pro forma sessions. This maneuver triggered an outcry from those who claimed that the appointments were invalid as the Senate was not technically in recess at the time. The D.C. Circuit Court agreed. Continue reading this entry at Littler's Labor Relations Counsel.
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