The U.S. Court of Appeals for the D.C. Circuit shook up both Washington and Wall Street last Friday, when it invalidated President Obama’s January 2012 recess appointments of three members of the National Labor Relations Board. The decision also threatened Obama’s appointment of Richard Cordray to lead the Consumer Financial Protection Bureau, since Cordray was appointed at the same time as the NLRB members, and it raised serious questions about the CFPB’s ability to police the financial industry without a director at its helm.
Now D.R. Horton, a company that’s been tangling with the NLRB in a key case dealing with employer arbitration agreements, wants the U.S. Court of Appeals for the Fifth Circuit to extend the D.C. Circuit’s reasoning to another NLRB member who was appointed nearly three years ago. If the Fifth Circuit agrees, it could pose major problems for the NLRB, including undermining the agency’s year-old holding in the Horton case that companies can’t compel employees to waive their rights to collective action through private arbitration agreements.
