NLRB to Seek High Court Review of Recess Appointments
The National Labor Relations Board (NLRB) has decided not to ask for a full rehearing from the U.S. Court of Appeals for the D.C. Circuit of its ruling that the January 2012 recess appointments of three members to the Board were invalid. After consulting with the Department of Justice, the Board now intends to file a petition, due April 25, for review with the U.S. Supreme Court.
President Obama had filled three vacancies on the NLRB while the Senate was on a 20-day holiday break last January. The Constitution states that the Senate must consent to presidential nominees to federal offices such as the NLRB, but gives the president authority to fill vacancies that may happen when the Senate is in recess. Some lawmakers objected to the appointments, saying the Senate was not in recess, as it was holding “pro forma” sessions every few days.
The Court of Appeals for the D.C. Circuit agreed, thus raising questions about hundreds of NLRB actions in the past year, many of them union-friendly. If the appointments are invalid, the NLRB without those three members does not have a quorum to act.
A bill introduced in Congress (HR 1120) would prohibit all NLRB actions until there is a Senate-confirmed quorum or the Supreme Court resolves the constitutional issue regarding the appointments. Meanwhile the Board says it will continue to conduct business as usual.
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