NLRB Recess Appointments Ruled Unconstitutional

On January 25, 2013, the United States Court of Appeals for the D.C. Circuit held that President Obama’s recess appointments to the NLRB over the past two years are unconstitutional because the appointments did not occur while the Senate was in a formal recess (Republican members of the Senate, during the period that normally would have been a recess, briefly went on the record every few days).   The D.C. Circuit voided the Board’s order in the case before it.   In light of this ruling, parties that have lost NLRB cases after January 4, 2012 (the date of the invalid recess appointments) are likely to obtain relief from these rulings in the D.C. Circuit on this constitutional basis. Shawe Rosenthal will provide more information about this ruling and its impact on employers in the January e-update.