HR Management & Compliance

NLRB Foes Marshaling Forces Against Obama’s Recess Appointments

Will President Barack Obama’s recess appointments to the National Labor Relations Board (NLRB) stand? Some in the business community and Congress hope not, and they’re taking action.

Two House actions have been filed in opposition to the appointments:

H.R. 3770, sponsored by Representative Jeff Landry (R-LA.), would amend federal law “to provide that payment for services may not be made to an individual appointed during a recess of the Senate to fill a vacancy in an existing office, if the vacancy existed while the Senate was in session and was by law required to be filled by and with the advice and consent of the Senate, and for other purposes.”

H. Res. 509, sponsored by Representative Diane Black (R-TN.), which claims that Obama’s appointments to the NLRB as well as to the Consumer Financial Protection Bureau on January 4 were unconstitutional because they were made “during a period when no recess of the Congress for a period of more than three days was authorized by concurrent resolution.”

In addition to congressional action, the National Right to Work Foundation announced on January 13 that it had added a challenge to the recess appointments to its joint court action with the National Federation of Independent Business and the Coalition for a Democratic Workplace. That lawsuit opposes the NLRB’s rule requiring most employers to display a poster outlining worker rights regarding unions even in nonunion workplaces. The poster requirement has been delayed twice while the issue is in litigation.

On January 4, Obama appointed Democrat Sharon Block, Republican Terence F. Flynn, and Democrat Richard Griffin to the NLRB, giving the agency its full complement of members for the first time since August. The normally five-member Board had been operating with three members because terms had ended for two previous members and the Senate hadn’t confirmed Obama’s nominations.

Obama made the recess appointments to keep the NLRB from falling to two members — and losing its quorum — when Democrat member Craig Becker’s term expired on January 3. Becker was an Obama recess appointment in April 2010.

The Board now is made up of two Republicans, Brian Hayes and Flynn, and three Democrats, Chairman Mark G. Pearce, Block, and Griffin.

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