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As we informed you in a recent update, on January 25, 2013, the United States Court of Appeals for the District of Columbia Circuit determined that President Obama's January 2012 recess appointments to the National Labor Relations Board (NLRB)—Sharon Block, Terence Flynn and Richard Griffin—were unconstitutional. The ultimate legitimacy of these appointments will likely be determined by the United States Supreme Court, and the NLRB has taken the position that it will "continue to perform [its] statutory duties and issue decisions" as the decision is appealed.
In the wake of that decision, however, President Obama has renominated Sharon Block and Terence Griffin to fill seats on the NLRB. Before their prior appointments to the NLRB, Block was the deputy assistant secretary for congressional affairs at the Department of Labor, and once worked for the late Sen. Edward Kennedy (D-MA). Griffin was a lawyer for labor unions, including the AFL-CIO and the International Union of Operating Engineers. It is unclear whether Block and Griffin will be confirmed by the Senate. But even if they are confirmed, it would not resolve the issue raised by the Court of Appeals' decision regarding the hundreds of decisions in which they participated after their recess appointments and before their subsequent reappointment.
Stay tuned, as we will keep you updated on any further National Labor Relations Board developments. In the meantime, if you have questions about how this development affects your business, contact any Faegre Baker Daniels labor lawyer.