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NLRB Recess Appointments Ruled Unconstitutional


By Howard Kastrinsky

In a groundbreaking interpretation of the Constitution, the U. S. Court of Appeals for the District of Columbia ruled the President’s authority to make recess appointments was limited to that narrow time frame between sessions of the Senate.  The court’s opinion overturns nearly 70 years of experience, where presidents, both Democratic and Republican, have routinely made recess appointments whenever the Senate was not in session.

Since the recess appointments were unconstitutional, the NLRB members were not properly seated on the Board.  The decisions they issued were issued without a quorum and were therefore invalid.  The NLRB decisions that have been invalidated are every decision made by the NLRB since the beginning of 2012.  Just a few of the now-invalidated decisions cover: social media; the obligation to bargain with a union over disciplinary decision; off-duty employee access to employer property; internal investigations and confidentiality; and the obligation of an employer to maintain union dues check-off after expiration of a collective bargaining agreement.

It is a near certainty that the D.C. Circuit’s decision will be appealed to the Supreme Court.  In the meantime, the chairman of the NLRB (who was not a recess appointment) was defiant.  He stated, “The Board has important work to do.  The Persons who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.”

Read the court's opinion here.


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