Federal Court to Weigh In on the Constitutionality of President Obama's Recess Appointments to the National Labor Relations Board

On January 10, 2012, we reported that court challenges were likely on the constitutionality of President Obama's three recess appointments to the National Labor Relations Board.  The legal update discussing the constitutional issues surrounding those temporary recess appointments can be accessed here. 

The predicted federal court challenge to those recess appointments came quickly. On January 13, 2012, the National Federation of Independent Business, the National Right to Work Legal Defense and Education Foundation, the Coalition for a Democratic Workplace, and other parties (Challenging Parties) filed a motion requesting leave to amend the complaint in their lawsuit challenging the NLRB's proposed requirement that employers covered by the NLRA post a workplace notice informing employees of their federal labor law rights.  

The Challenging Parties argue that these appointments are unconstitutional and have created a new and substantial ground for enjoining the NLRB's notice posting requirement, the validity of which the court is already poised to decide.  The Challenging Parties argue that the appointees do "not in fact hold valid appointments to the agency."  They also cite New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010), where the Supreme Court held that the NLRB lacks the authority to act with only two members, and argue that, because of New Process Steel, the NLRB no longer has the authority to implement or enforce the notice posting requirement, even if the other legal challenges to that requirement are not successful.  The Challenging Parties contend that, even if the notice posting requirement was constitutional, the recess appointments were invalid, leaving the NLRB without "a quorum of validly appointed members" and leaving the NLRB with no "authority to implement or enforce the Rule now or in the future."

The party that loses this case likely will appeal the decision to the United States Court of Appeals, and it would not be surprising to see this case reach the United States Supreme Court by early next year.

If you have questions about the legal challenges to President Obama's recess appointments to the Board, or any other labor matters, please contact any Faegre Baker Daniels labor lawyer.