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NLRB Continues its Fight over President Obama's Authority to Unilaterally Appoint its Members Without Senate Approval, Abandons its Fight Over its Own Authority to Implement Controversial Notice-Posting Mandate

January 2014

By: James B. Sherman, Esq. and Phoebe A. Taurick, Esq.

The Supreme Court heard oral arguments this month on the National Labor Relations Board's appeal of appellate court decisions that declared President Obama lacked authority to appoint two of its members without Senate approval. Meanwhile, also this month, the NLRB announced that it will not seek the Supreme Court's review of two appellate court decisions that held it lacked authority to require private employers to post employee notices about unionizing. Both matters illustrate the extent of the NLRB's resolve to expand its (and the President's) authority when it comes to labor matters.

On January 6, 2014 the NLRB announced that it would not seek Supreme Court review of two U.S. Court of Appeals decisions that had held the NLRB lacked authority to require private employers to post notices informing employees of their rights under the National Labor Relations Act, most notably to form and join a union. The NLRB initially passed this controversial rule in August 2011, and it was scheduled to go into effect November 14, 2011, but was repeatedly postponed after it was challenged through several lawsuits. Both the Fourth Circuit and D.C. Circuit Courts of Appeals declared in separate lawsuits brought by business groups, that the NLRB exceeded its authority in issuing the controversial rule.

Although it has given up this fight, the NLRB stated that outreach to employees regarding rights under the National Labor Relations Act continues to be a priority. Among its efforts in these regards is a free NLRB mobile app for iPhone and Android users providing information to employees, unions, and employers about their rights and obligations under the National Labor Relations Act.

Just one week later, on January 13, 2014 the Supreme Court heard argument on the NLRB's appeal of rulings that three of its members were improperly appointed by President Obama. Specifically, two appellate courts had ruled that President Obama lacked authority to unilaterally appoint Board members without U.S. Senate approval at the time that he made the appointments.

Questions? Call Wessels Sherman's Minneapolis, Minnesota office: 952-746-1700 or email jusummer@wesselssherman.com.