Those of you following the national news scene closely may have noticed a flurry of excitement related to the National Labor Relations Board (NLRB) and some appointments made to the NLRB last year. The excitement is related to recess time in Washington, and even more specifically, the Senate's recess time. Presidents sometimes use the tactic of waiting to make appointments, which technically should be confirmed by the Senate, until after the Senate heads out for recess.
Three of the five members of the NLRB were appointed during an alleged recess last year. While the Senate was supposedly out in the yard playing dodge ball, the President gave away a few jobs to people the Senate likely would not have approved. But this time around, some members of the Senate, having watched President Obama use this tactic in prior recess times, decided to linger inside and work on some homework. As a result, the question was whether the Senate was actually in recess when the appointments were made.
The federal appeals court for the D.C. Circuit said the Senate was not in recess, so the three appointments were invalid. The consequence of this decision could very well be that all of the 200 plus decisions handed out by the improperly formed NLRB may be invalid as well. In addition, there are also other decisions made by the NLRB that could be in question. Stay tuned over the next few weeks or months as this schoolyard recess drama plays out. If you were subject to an NLRB decision in the last year, it is probably worth revisiting the issue to see if there may be some relief as a result of the decision.