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D.C. Circuit rules recess appointments unconstitutional

Ruling puts 2012 NLRB decisions in limbo

The National Labor Relations Board (NLRB) issued a flurry of controversial decisions just prior to the expiration of Republican Board Member Brian Hayes’ term on Dec.16, 2012. The haste to wrap up key cases reflected the reality that Hayes’ departure left the board with uncertain prospects for maintaining the required quorum of three members in 2013.

On Jan. 25, the board’s worst fears were realized when the D.C. Circuit ruled that President Obama’s recess appointments were unconstitutional

Protected Posts

In Hispanics United of Buffalo, the board, with only Hayes dissenting, found that a nonprofit unlawfully terminated five employees because of their derogatory Facebook comments about a co-worker. The employer said the workers had violated its anti-harassment policy. But the board majority said the posts were protected activity showing the employees were “taking a first step towards taking group action,” because they believed the employee they criticized would report them to management.

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Mary Swanton

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