The D.C. Circuit Court of Appeals Rules that President Obama’s NLRB Appointments Are Invalid, by David A. McClurg

Posted by Attorney Roger L. Pettit / Comments

On January 25, 2013, the D.C. Circuit Court of Appeals invalidated three “recess” appointments that President Obama made to the National Labor Relations Board on January 4, 2012. The court held that such recess appointments can only be made during intersession recesses that occur between the extended sessions of Congress, and not, as President Obama attempted with the three NLRB appointees, during recesses in the middle of a session of the Senate.

Because the U.S. Supreme Court ruled just two years ago that the five-member NLRB cannot act on issues absent a quorum, (and the participation of illegally appointed members does not provide a quorum) the D.C. Circuit ruling, if upheld, will arguably invalidate decisions in over 300 cases heard by, and several administrative rules promulgated by the NLRB over the last year, including many that adversely affected non-union employers:

a)   The NLRB’s “quickie election” proposal that would shorten the timeframe for union elections and limit challenges to bargaining unit composition;

b)   Proposal to force employers to bargain with “micro-units” that represent narrow groups of workers within a company (even workers of a single job title);

c)   Limiting employees’ rights to not fund political activities by preventing workers from viewing auditors reports of union spending and by classifying lobbying expenses as “representational activities”;

d)   Restricting employers’ ability to end payroll dues deductions when a collective bargaining agreement expires;

e)   Restricting employers’ ability to limit off-duty access to a workplace– thus expanding access for union organizers;

f)   Narrowing the definition of supervisors (who cannot be unionized) to expand the number of employees unions can organize;

g)   Expanding the definition of “concerted activity” to include public complaints about an employer in social media, and to preclude rules requiring that employees refrain from discussing investigations;

h)   Asserting NLRB jurisdiction over public charter schools;

i)    Requiring employers to give unions copies of sworn witness statements in investigations into workplace misconduct, chilling the ability of employees to speak freely without fear of repercussions.

The 2013 Labor & Employment Law Update Seminar will address the impacts of these decisions as well as the impact of their potential reversal as a result of the D.C. Circuit ruling.  Please click on http://www.petriestocking.com/images/stories/2013Roadshow.pdf for the seminar content as well as dates and locations.