Another Court Finds NLRB Recess Appointments Unconsitutional

Just one day after the National Labor Relations Board (NLRB) got some good news, the Fourth Circuit Court of Appeals delivered some bad news in NLRB v. Enterprise Leasing Company Southeast, LLC.  Like the D.C. Circuit and Third Circuit, the Fourth Circuit found that President Obama’s recess appointments to the NLRB were unconstitutional, as there was no recess when the appointments were made.  The constitutionality of those appointments will be decided by the U.S. Supreme Court in the fall and it is widely expected that the high court will find those appointments to be unconstitutional.

Just two days ago, the Senate resolved its impasse as to the President’s appointments to the NLRB and it is expected that the NLRB will have a full panel of members within a few weeks.  But, if the U.S. Supreme Court finds the recess appointments to be unconstitutional, then it will also likely invalidate dozens of decisions reached by the NLRB since January 2012 — including controversial decisions on social media, arbitration agreements, internal investigations, and employee handbooks.

- Dan Handman

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