NLRB ruling challenged in light of D.C. Circuit ruling

D.R. Horton asks the 5th Circuit to toss an NLRB decision that included a possibly invalid board member

Last week, the D.C. Circuit issued a decision in which it found that President Obama’s recess appointments to the National Labor Relations Board (NLRB) last year are invalid. In light of the ruling, experts predicted that hundreds of NLRB decisions in the past year could be invalid. Now, a plaintiff has filed the first lawsuit challenging one of the board’s 2012 decisions.

On Jan. 25, a three-judge panel for the D.C. Circuit ruled that the president violated the Constitution when he bypassed the Senate to appoint Sharon Block, Richard Griffin and Terence Flynn to fill vacancies on the NLRB last year. Although the president says he acted properly because the Senate was on a 20-day recess, the court contended that the Senate was technically still in session.

Yesterday, home builder D.R. Horton Inc. asked the 5th Circuit to throw out a January 2012 NLRB decision concerning an arbitration agreement and class action waiver that it required its employees to sign as a condition of their continued employment. In that case, the NLRB found that D.R. Horton’s agreement violated Section 7 of the National Labor Relations Act, which gives employees the right “to engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

D.R. Horton is questioning whether the D.C. Circuit’s decision could impact past recess appointments. The company claims that Obama’s appointment of Craig Becker to the NLRB in 2010 should also be considered invalid. If the 5th Circuit were to find that Becker’s appointment was invalid, then the board had only two members—less than a quorum—when it issued its decision against D.R. Horton last year.

Read more at Thomson Reuters.

For more recent InsideCounsel NLRB coverage:

D.C. Circuit says Obama’s recess appointments are invalid

NLRB cannot force companies to bargain in face of clear impasse

Labor: NLRB overturns decades of precedent in support of continuing dues-checkoff

Former NLRB member joins Ogletree Deakins

Labor: NLRB finds employees wrongly fired because of Facebook posts

Labor: Michigan right-to-work law continues to put labor on its heels

Labor: Pitfalls and policies around social media and employment law decisions

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