Checks and Balances: Challenges to Recess Appointments to NLRB Grow

Contributed by Beverly Alfon

Just over a week has passed since President Obama’s controversial appointees were sworn in (January 9) as members of the National Labor Relations Board (NLRB).  It has been 18 months since the board has been complete and it is now poised to continue down its pro-union path.  The rally call has been sounded.  All sides have their game faces on for this one. 

On the Executive Front

On January 12, 2012 – the day that the Department of Justice (DOJ) released a legal memorandum opining that the President had the authority to make the NLRB appointments — the White House confidently declared that it consulted with the DOJ prior to the appointments and added that the prospect of legal challenge does not change the fact that the appointees have been sworn in and are now in place. 

On the Legislative Front

Eighteen House Republicans, including Senator John Kline (R-Minn.) the Chairman of the Education and the Workforce Committees, also took action on January 12th sending a letter to President Obama regarding their disapproval of the lack of public disclosure in his recess appointments and the failure of the appointees to complete the standard Senate application or background check. 

Previously, on January 6th, Senator Charles Grassley (R-Iowa), the ranking member of the Senate Judiciary Committee wrote a letter to Attorney General Eric Holder asking for an explanation of the DOJ’s unprecedented and recently changed position regarding what constitutes recess in the context of presidential appointments. That same day, Senator Kline and Rep. Phil Roe (R-Tenn.), Chairman of the Health, Employment, Labor and Pensions Subcommittee, asked the NLRB and White House to produce documents related to the recess appointments, including materials provided by the DOJ.  The deadline for document production is January 20th.

On the Judicial Front

On January 13th, the National Right to Work Legal Defense and Education Foundation, Inc. (NRTW) led the charge in the federal court for the District of Columbia.  NRTW filed a motion asking the court to hold the appointment of the three new Board Members as “unconstitutional, null and void.”  The motion also asks the court to prevent the NLRB from enforcing its equally controversial mandate requiring employers to post notices of employees’ rights to organize (the enforcement of which is currently postponed to April 30, 2012).

Why This Should Matter To You

The employer-friendly decisions issued by the Bush-appointed board are at risk of being reversed by the newly replenished board, including:

  • Register-Guard – which held that an employer can lawfully prohibit its employees from using their e-mail system for organizing activities;
  • IBM Corporationwhich held that Weingarten rights apply only to union represented employees
  • Oakwood Healthcare – which broadened the definition of “supervisor” under the NLRA; providing for the exclusion of such supervisors from voting in union elections. 

In short, more dramatic changes may be in store.