On January 4, 2012, President Obama announced his intention to make three recess appointments to the National Labor Relations Board, filling vacancies that otherwise would have left the Board without the authority to carry out its functions. Faced with the prospect of losing a quorum upon the expiration of the recess appointment of Craig Becker the day before, the President moved forward with the recess appointments, despite procedural moves in Congress to curb his power to do so. The announcement of the appointments has met with stiff opposition from those both on and off Capitol Hill who contend that, because the Senate was not technically in recess, the President was not authorized to make recess appointments. In fact, on January 13, 2011, the National Federation of Independent Business and the National Right to Work Foundation filed a motion in federal court, as part of their lawsuit against the Board for requiring employers to post notices about employees’ rights under the National Labor Relations Act, arguing that the President’s appointments were “unconstitutional, null and void,” and an illegal attempt to bypass the Senate. While the definition of “recess” and the validity of the appointments are under challenge, employers should prepare for a reconstituted Democrat controlled Board that is expected to continue an apparent pro-labor adjudicatory and rulemaking agenda.

The move to seat new Board members was prompted by the U.S. Supreme Court’s decision in New Process Steel v. NLRB, 130 S. Ct. 2635 (2010). In this June 2010 decision, the Supreme Court ruled that the Board must have at least three sitting members to exercise its full authority. When former member Craig Becker’s recess appointment expired at the end of the First Session of the 112th Congress on January 3, 2012, the five-member Board was left with just two sitting members – Chairman Mark Gaston Pearce (D) and Member Brian Hayes (R). Accordingly, the Board ceased to have the ability to act when Becker’s term expired.