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The NLRB issued approximately 800 published and unpublished decisions while Becker was an NLRB member, all of which may be in jeopardy as a result of this new challenge.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.