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Employer Law Report

Tag Archives: recess appointments

Remember When “Recess” Meant Fun and Games? The Impact of Canning v. NLRB, and What Employers Need to Know While We Wait and See if the Decision Will Remain In Tact

Posted in Labor Relations, Workforce Strategies

As the D.C. District Court’s long-awaited decision in Noel Canning v. NLRB, invalidating President Obama’s January 2012 "recess" appointments, likely heads to the United States Supreme Court, here’s what employers need to know in the interim about the impact of that decision.

The Background

As we explained in our post, President Obama’s Move to Sidestep the Senate with Recess Appointments, when the National Labor Relations Board’s ("NLRB") normal five-person membership fell to two in late 2011 when Craig Becker’s (who had also been an Obama recess appointee) appointment expired and the agency, therefore, lost its statutory authority to …


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A New Challenge to President Obama’s Recess Appointments in Federal Court Means a Decision on the Constitutionality of the Appointments is Getting Closer

Posted in Labor Relations

The first challenge to President Obama’s recess appointments, which was an attempt to bootstrap the issue to a federal lawsuit targeting the constitutionality of the National Labor Relations Board’s ("NLRB") notice-posting rule, has come and gone. The court did not address the constitutionality of the President’s appointments, who emerged unscathed. Now, and more determined than ever, business groups are picking up the gauntlet and challenging the appointments through more conventional means.

As we reported earlier, the National Right to Work Foundation (“NRWF”), was the first to ensure the issue of the constitutionality of the President’s appointments would be decided …


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The House Committee on Education and the Workforce Vows to Continue Its “Aggressive Oversight” of President Obama’s Recess Appointments and Future Actions Taken by the “Obama” NLRB

Posted in Labor Relations

The House Committee on Education and the Workforce, chaired by Rep. John Kline (R-MN), held its hearing Wednesday, February 7, 2012 titled, “The NLRB Recess Appointments: Implications for America’s Workers and Employers.”

As Chairman Kline explained in his opening remarks, the Committee’s "primary concern is the fear and uncertainty [that President Obama's] action [in making three recess appointments to the National Labor Relations Board ("NLRB")] has unleashed – the fear of the activist NLRB’s future actions and the uncertainty of whether its mandates and decisions can stand under constitutional scrutiny.”

Given that the Chairman framed the issue as …


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And So It Begins: President Obama’s Recess Appointments Face Their First Attacks

Posted in Labor Relations

On Friday, January 13, 2012, a number of business groups, including the National Federation of Independent Business, National Right to Work Foundation, Coalition for a Democratic Workplace, lodged the first legal challenge seeking to block President Barack Obama’s January 4, 2012 recess appointments to the National Labor Relations Board (“NLRB”).

Procedurally, the groups bootstrapped their challenge to a lawsuit pending in the U.S. District Court for the District of Columbia challenging the NLRB’s highly controversial “Notice Posting Rule” that would require businesses to post notices and inform employees right to bargain collectively, distribute union literature, and engage in other union …


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President Obama’s Move to Sidestep the Senate with His Recess Appointments

Posted in Labor Relations, Workforce Strategies

When the National Labor Relations Board (NLRB) lost its statutory authority to issue rulings because its normally five-person membership fell to two last week, President Obama made three recess appointments sparking a new controversy between Democrats and Republicans.

One reason the appointments have generated so much attention stems from New Process Steel, L.P. v. NLRB , 130 S. Ct. 2635 (2010), where the United States Supreme Court held that the five-member NLRB cannot delegate its authority to fewer than three members. Thus, a two-person board is not a quorum and is powerless to render decisions. Since Wilma Leibman’s term expired …


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