President Barack Obama's first term saw a spate of pro-labor rulings emerging from the National Labor Relations Board (NLRB), which included three Democratic members with links to unions. The board's rulings, including regulations covering social media, union elections and right-to-work issues, worried employers and Republican legislators alike.

But that string of decisions came to a halt earlier this year when the NLRB became embroiled in a controversy over recess appointments that threatens to undo many of the board's rulings going back more than a year. InsideCounsel's  June cover story takes a look at the NLRB in limbo, and howpoliticians, employers and attorneys are responding to the uncertainty surrounding the board.

What caused the current uncertainty surrounding the NLRB?

In January, the D.C. Circuit ruled in Noel Canning v. NLRB that President Barack Obama's appointments of Sharon Block, Richard Griffin and Terence Flynn to the NLRB were unconstitutional because they were made while the Senate was in recess. The decision, if it stands, could invalidate the board's decisions and rulemaking stretching back to at least January 2012—when Obama made the appointments—because the five-member board would not have had the quorum necessary to make decisions.  On June 24, the Supreme Court agreed to hear the case during its fall term.

Then on May 16, the 3rd Circuit found the appointment of former NLRB member Craig Becker invalid for the same reason. Becker was selected by Obama to serve a “recess” appointment on the board from March 27, 2010 until early in 2012. This court decision casts doubt on the legitimacy of many additional board rulings.

What NLRB decisions could be invalidated if the two appeals court rulings  stand?

Among the more significant decisions to be thrown into jeopardy  is  D.R. Horton Inc.—currently on appeal before the 5th Circuit—which struck down class action waivers in arbitration agreements. Another is the so-called “quickie election rule,” which shortens the time frame for union representation elections from 56 days to 30 days.