Evan Spelfogel Quoted in Article “D.C. Circuit Finds NLRB Appointments Invalid and Leaves Board Without Quorum for Action”

Bloomberg BNA's Daily Labor Report

Evan Spelfogel Quoted in Article "D.C. Circuit Finds NLRB Appointments Invalid and Leaves Board Without Quorum for Action"

Following is an excerpt:

The U.S. Court of Appeals for the District of Columbia Circuit held Jan. 25 that President Obama's recess appointments of three members to the National Labor Relations Board were invalid and the board lacked a valid quorum to support an unfair labor practice order against a Washington bottling firm.

Writing for the court, Judge David B. Sentelle said the recess appointment power of the president described in the U.S. Constitution applied only during an "intersession" recess of the Senate, not during intrasession adjournments of the congressional body. Obama made his recess appointments of board members Sharon Block (D), Terence F. Flynn (R), and Richard F. Griffin (D) on Jan. 4, 2012, and the court said the president exceeded his constitutional authority. Judges Karen LeCraft Henderson and Thomas B. Griffith joined in the ruling. ?...

Management attorney Evan J. Spelfogel of Epstein Becker & Green in New York told BNA the decision was "the one everyone has been waiting to see." The lawyer called the 46-page opinion an "extremely scholarly and studious analysis," and suggested that its authorship by Sentelle, chief judge of the D.C. Circuit, made the three-judge panel decision less likely to be reversed if it is considered by the appeals court in an en banc review.

Spelfogel acknowledged that the validity of the NLRB appointments is still at issue in other circuits, but he said the D.C. Circuit has particularly significant weight, since any party aggrieved by a final NLRB decision can petition for review there.