The second quarter of 2013 has certainly highlighted the ongoing tension between the National Labor Relations Board and its overseers. In May, the D.C. Circuit vacated the controversial NLRB rule requiring employers to notify employees of their rights under the NLRA, upholding a challenge brought by several employer groups.The appeals court concluded that the rule violated employers' free speech rights as protected by Sec. 8(c) of the Act
Also in May, a divided Third Circuit ruled the recess appointment of former member Craig Becker was invalid.Thus, a three-member panel comprised in part of Becker was improperly constituted when it denied reconsideration of a Board order finding an employer unlawfully refused to bargain with a newly elected union.
Finally, in April, the NLRB filed its Petition for Certiorari in the Noel Canning case. The Noel Canning reasoning strikes at the validity of many other Board decisions; if the recess appointments in question are not counted toward a quorum, then under the Supreme Court's New Process Steel case, the decisions since those appointments would be invalid because the five-seat Board may not delegate its authority to a panel with fewer than three members. Presuming the Court will grant certiorari, it will effectively determine the validity of all decisions made by the Board after those recess appointments were made. …