No Time Out Over Recess Appointment Battle of NLRB's Authority

Employers and Acting National Labor Relations Board General Counsel Lafe Solomon continue to spar over the NLRB’s authority in the wake of the D.C. Circuit’s 2013 Noel Canning decision invalidating President Obama’s recess appointments of three NLRB Members. Attacks on the Board’s authority have morphed into an all-out offensive by employers to invalidate hundreds of adverse NLRB decisions and to freeze the Board from deciding current cases.

So far over 80 companies have cited the Noel Canning decision in their opposition to Board action. The most recent is 24-Hour Fitness USA Inc. It challenges the Board’s authority to decide the appeal from an Administrative Law Judge decision that the class action aspects of the company’s arbitration program were unlawful. In response, NLRB General Counsel Solomon argues that Noel Canning is not controlling because other federal circuit courts have disagreed with the D.C. Circuit and because the Board has a “longstanding practice not to acquiesce in adverse decisions by individual courts of appeals…”

http://www.forbes.com/sites/theemploymentbeat/2013/03/13/no-timeout-in-recess-appointment-battle-over-nlrbs-authority/