Groups Challenge President's Recess Appointments

Plaintiffs in ongoing litigation filed a motion last Friday challenging President Obama's recent recess appointments to the NLRB.  We most recently posted on the appointments here and here.

The plaintiffs--including the National Right to Work Legal Defense and Education Foundation and the National Federation of Independent Business--filed their initial complaint in the Federal District Court for the District of Columbia last September, alleging that the NLRB lacked authority under the National Labor Relations Act to implement several new rules, including one that would require employers to post notices to their employees of their rights under the NLRA.

In the motion last week, the plaintiffs sought to amend their complaint to add a new charge--that President Obama's recent recess appointments to the NLRB were unconstitutional, and therefore the NLRB didn't have sufficient sitting members to enforce its new rules.  From the memorandum in support of the motion:

The Board has lost its quorum due to the expiration of Member Becker's term and the President's failure to appoint new Board members with the advice and consent of the U.S. Senate, as required by Article II of the Constitution. . . .  The President's purported appointment of the new Board members on January 4, 2012 was unconstitutional, null and void.  As a result, there are at present only two validly serving members of the Board, Chairman Pearce and Member Hayes.  The Supreme Court has declared that the Board lacks authority to act with only two members.  New Process Steel, L.P. v. NLRB.

SDS