In January 2013, one year after President Obama made three so-called recess appointments to the National Labor Relations Board (NLRB), the D.C. Circuit Court of Appeals held that those appointments were unconstitutional and that, therefore, the board lacked the required three-member quorum to issue an order finding that an employer committed an unfair labor practice.
In holding that President Obama’s board appointments were constitutionally infirm, the Circuit Court’s decision will likely have far-reaching effects on modern labor law and, if upheld, may invalidate over 200 NLRB decisions decided since the January 2012 recess appointments. Although the board has asserted that the decision only applies to the one specific case and that it intends to conduct business as usual, it has filed a notice of appeal to the United States Supreme Court. In all likelihood, until the Supreme Court resolves this issue, the legitimacy of the board’s decisions shall remain under a cloud of uncertainty.
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