The National Labor Relations Board is facing a new court challenge to its authority. Daycon Products Company, Inc. has petitioned the United States Supreme Court to rule on whether former NLRB member Craig Becker’s recess appointment to the NLRB was lawful, and therefore, whether the NLRB’s decision (in which Becker's participation was needed for a quorum) that Daycon Products Company violated the National Labor Relations Act was valid. Becker's appointment to the NLRB ran from April 5, 2010 until January 3, 2012.
On September 21, 2011, by a three-member panel that included then-member Becker, the NLRB decided Daycon had violated the NLRA by unilaterally subcontracting work, declaring impasse and unilaterally implementing its last bargaining offer, and by refusing to reinstate strikers who had offered to return to work.
On appeal, the U.S. Court of Appeals for the District of Columbia Circuit ruled against Daycon Products on January 14, 2013, only 11 days prior to the same court’s decision in Noel Canning. In Noel Canning, the recess appointments of NLRB members Richard Griffin and Sharon Block during an intrasession (rather than intersession) break of the Senate were held invalid, and therefore, the Board’s Order finding Noel Canning had violated the NLRA was void. See Recess Appointments at NLRB Unconstitutional, Federal Appeals Court Rules. On May 16, 2013, the United States Court of Appeals for the Third Circuit in Philadelphia likewise ruled that Becker’s appointment to the Board was invalid. NLRB v. New Vista Nursing and Rehabilitation, LLC, Nos. 11-3440, 12-1027 and 12-1936. Therefore, the Third Circuit invalidated President Obama’s March, 2010 recess appointment of Becker because it occurred during an intrasession period. See Third Circuit Court of Appeals Decides Craig Becker's Appointment to NLRB Was Invalid.
The NLRB issued approximately 800 published and unpublished decisions while Becker was an NLRB member, all of which may be in jeopardy as a result of this new challenge.