Since the D.C. Circuit Court of Appeals January 25 ruling invalidating President Obama’s recess appointments to the National Labor Relations Board, over 70 cases pending in federal appeals courts have cited it in attempts to undo adverse Board decisions.
The D.C. Circuit Court opinion, which will affect not only the NLRB but every federal agency, is pending appeal in the U.S. Supreme Court, which will probably review the case. In the meantime, though, employers facing the losing end of an NLRB decision are not wasting any time trying to persuade other appeals courts to follow the D.C. Circuit’s reasoning.
The Fourth Circuit, which sits in Richmond, held oral argument on one of these cases in late March. That means an opinion will be released in the coming months. The consequences of upholding the D.C. Circuit’s reasoning are drastic: any decision the NLRB made would be completely invalidated. The resulting uncertainty affects not only labor cases, but the more controversial social-media cases that have brought the NLRB to the forefront of employment law recently.
Ultimately–especially if federal appeals courts reach differing results–the U.S. Supreme Court should clarify the issue.