When we left off, numerous business groups had lobbed the first attack at President Barack Obama’s three recess appointments to the National Labor Relations Board (“NLRB”) by adding it to their pending lawsuit challenging the NLRB’s highly controversial “Notice Posting Rule,” set to take effect on April 30, 2012.

On January 30, 2012, the NLRB responded, but opted to stay clear of the issue on everyone’s mind—whether the appointment were constitutional or not? Instead, it punted the issue and took a safer approach arguing that the business groups lacked standing to challenge the appointments in the notice-posting lawsuit. The crux of the NLRB’s response was that the notice-posting rule was promulgated before the recess appointments were made. Thus, the newly-constituted NLRB—constitutional or not—will not have to actually act for employers to be under a legal duty to post the required notice come April 30th. The NLRB also argued that any purported injury suffered would be purely speculative and is “not sufficiently concrete to confer standing."

The business groups will have an opportunity to respond, but one of the groups, the National Right to Work Foundation (“NRWF”), has already taken steps to ensure that the issue of the constitutionality of the appointments will be decided, one way or another. It did so, as we predicted, by filing motions (click here to see the motion filed in Stewart v. UFCW Local 99 & Fry’s Foods of AZ) with the NLRB to disqualify the three purported recess appointees from participating in its six cases pending before the NLRB. Like in the federal lawsuit, the NRWF argues that the appointments are unconstitutional and that the Board lacks the quorum necessary to hear cases. It is likely that we will see many other businesses and business group filing similar motions with the NLRB.

The cases involved are: Richards & Yost v. Steelworkers; Sands v. Food & Commercial Workers; Gray v. Coupled Products, LLC & UAW Local 2049; Lugo v. Electrical Workers Local 34; Geary v. Nurses & Allied Professionals Local 5008; and Stewart v. UFCW Local 99 & Fry’s Foods of AZ.

And if you were wondering about  H.R. 3770 – the Executive Appointments Reform Act (EARA), it was assigned to a congressional committee on January 10, 2012, which will consider it before possibly sending it on to the House or Senate as a whole.

While the EARA sits, the House Education and the Workforce Committee will hold a hearing titled "The NLRB Recess Appointments: Implications for America’s Workers and Employees," on Tuesday, February 7, 2012, at 10:00 a.m. (click here to access the Live Webcast on that date and time) to examine the NLRB recess appointments. It is foreseeable that the recess appointments will not weather well under the Workforce Committee’s microscope given the extremely touchy relationship between the Workforce Committee and the NLRB.

This hearing will follow the Committee on Oversight & Government Reform’s hearing held February 1, 2012 titled, “Uncharted Territory: What are the Consequences of President Obama’s Unprecedented ‘Recess’ Appointments?" The broader-focused hearing also took up President Obama’s appointment of former Ohio Attorney General, Richard Cordray, as Consumer Financial Protection Bureau Director.

During the hearing, Senator Mike Lee (R-UT) testified as to the danger created if short periods of non-session by the Senate, like the ones at issue, were deemed sufficient to adjourn session and trigger the President’s recess appointment power:

"if an intersession adjournment of less than three days were sufficient for the President to be able to exercise this recess appointment power, it is unclear what, if anything, would prevent the President from routinely bypassing the Constitutions’ advice and consent requirement and appointing nominees during even weekend adjournments, which routinely involve periods of 72-hours, or more, in which the Senate may not be actually in the practice of holding committee hearings, and voting, and so forth."

(For more, click here to access the streaming video of that hearing).