Wyatt Employment Law Report

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Business Group Challenges Recess Appointments to NLRB

By Edwin S. Hopson

On January 13, 2012, the National Federation of Independent Business announced in a press release that it was seeking to amend its legal action filed in federal court on September 28, 2011, against the National Labor Relations Board over its new notice posting regulation, to include a new claim that the NLRB lacks the authority to enforce the notice posting regulation inasmuch as the recent recess appointments to the Board by President Obama violated the U.S. Constitution.  The new claim contends that the Senate was not in recess and therefore the President lacked the authority to make recess appointments to the Board.  Thus, if the President lacked authority to made the three recess appointments, then the NLRB will be down to just two Members and unable to function.