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January 17, 2012

First Challenge to Obama "Recess" Appointments Is Filed

This comes in a preexisting lawsuit against some new pro-union rules the NLRB is pushing on six million (really) employers. The plaintiffs are adding a challenge on the grounds that the NLRB has been reduced to only two lawful members, as a result of Obama's three "recess" appointments. The Supreme Court held last year that at least three members of its maximum five are required for the NLRB to operate.


U.S. District Judge Amy Berman Jackson in Washington is hearing business challenges to a rule, not yet put into effect by the NLRB, that would require as many as six million employers to put up in their workplaces a permanent poster that notifies their employees of the legal rights they have under federal labor law. That requirement, the so-called “notice posting” rule, is now due to go into effect on April 30. It had been set to go into effect at the end of this month, but the Board postponed it in December at Judge Jackson’s specific request while she ponders the challenge (pending in National Association of Manufacturers, et al., v. NLRB, District Court docket 11-1629).

Although that rule was put into final form by the Board before the President early this month gave “recess appointments” to three new members, the motion filed Friday argued that those appointments are “unconstitutional, null and void,” reducing the Board to only two members, and thus the Board “no longer has authority to implement or enforce the Notice Rule on its purported effective date of April 30, 2012.”

The plaintiffs argue that the Senate wasn't in recess. The Obama Admin went ahead with the appointments anyway after a legal memo stated that the pro forma "mock" Senate sessions being held every three days were not sufficient to keep the body in business.

Judge Jackson is an Obama nominee, named to the court less than a year ago and confirmed by a unanimous Senate.

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posted by Gabriel Malor at 07:12 AM

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