On May 16, 2013, the Third Circuit ruled that President Obama's recess appointment of Craig Becker to the National Labor Relations Board was invalid, thus leaving two valid appointees to the five-member Board. The consequence of this decision is that the remaining two-member Board never had the three-member quorum needed to act, and therefore, decisions that the Board rendered with the two-member Board – from August 27, 2011 on – are of no force and effect. This also could extend to other acts by the Board, such as appointments and delegation of powers to regional offices.
Ultimately, the recess appointment cases will be resolved by the United States Supreme Court. In the meantime, if you have a current matter before the NLRB, you should take steps to preserve the lack of quorum defense in every applicable response to the board – even at the local level.
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