NLRB Delays Posting Date For New Employee Rights Poster While President Obama Rushes to Make Recess Appointments

Volume 11, Issue 1
January 13, 2012

In a recent press release, the National Labor Relations Board (NLRB) announced the second postponement of the deadline for covered employers to post its new and controversial employee rights poster from the current deadline of January 31, 2012 to April 30, 2012.  This second extension of the posting deadline is the result of a lawsuit filed against the NLRB by the National Association of Manufacturers and the National Federation of Independent Businesses.  During a December 19, 2011 hearing in that case, U.S. District Court Judge Amy Berman Jackson told NLRB lawyers the relevant legal issues are complicated and "deserve more time" than the January 31, 2012 deadline provided.  As discussed more fully in KZA's August 26, 2011 and October 5, 2011 Employer Reports, the new employee notice rule was passed by the NLRB's Democrat Members at the time over the objections of lone Republican Member Brian Hayes, who maintained that millions of employers in the private sector will be subjected to the new posting requirement simply to "reverse the steady downward trend in union density among private sector employees in the non-agricultural American workforce."  Just days after the NLRB postponement announcement, President Obama hastily made three recess appointments to the NLRB on January 4, 2012 in an attempt to avoid any slowdown in the NLRB's aggressively pro-union agenda that could result from the NLRB dropping below the three Member quorum needed to take official action.  Such a slowdown was likely to occur at the beginning of this year given the expiration of the terms of certain current NLRB Members, which would have been extremely bad timing for the President's re-election campaign as it desperately needs the continued support of big union bosses and donations from union coffers.  Ordinarily, the President must receive the "advice and consent" of the Senate for all senior appointments. However, because the Senate was not always readily available during the nation's early existence, the Constitution allows the President to independently make temporary appointments whenever the Senate is in recess, which are valid until the end of the next session of Congress. In this case, however, the President's NLRB appointments, consisting of two Democrats, Sharon Block and Richard Griffin, and one Republican, Terence F. Flynn, were so rushed that they were made despite the fact that Congress was still actually in session.  Indeed, NLRB Members Block and Griffin were just nominated by the President a few short weeks ago, on December 15, 2011.  As pointed out by Wyoming Republican Senator Mike Enzi's office, the President's two Democrat appointments were referred to the Senate so quickly that they had not even completed the basic criminal and civil background check process when the President made his recess appointments.  Business leaders and Senators alike are deeply concerned over the President's actions.  Indeed, the Chairman of the House Committee on Education and Workforce, Republican Representative John Kline, and the Chairman of the Subcommittee on Health, Education, Labor, and Pensions, Republican Representative Phil Roe, have made a formal request for all documents related to President Obama's recess appointments given that the "complete departure from and total disregard for normal policies governing the appointments of these individuals to the Board raises serious questions about their qualifications, background, and future at the NLRB."  In addition, more than 35,000 Americans have signed a petition circulated by the American Center for Law and Justice (ACLJ) asking President Obama to retract his recess appointments to the NLRB in the midst of the growing number of U.S. Senators expressing concern about the unconstitutional nature of the appointments.  All Republican Senators on the Senate Judiciary Committee have signed a letter to Attorney General Holder expressing concern that President Obama "deviated from over 90 years of precedent."  The ACLJ has posted an online legal analysis of why President Obama's appointments violate the Constitution.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.