Cases are emerging challenging whether President Barack Obama overstepped his constitutional authority when he relied on recess appointment powers to appoint three members to the National Labor Relations Board (NLRB).  After the 2011 U.S. Supreme Court holding in New Process Steel v. NLRB that two members are not enough for a NLRB quorum, these recess appointments are necessary in many cases to provide authority for the NLRB to act.  Obama appointed three members to the Board on January 4, 2012, bypassing Senate confirmation by claiming lawmakers were in recess and unable to advise and consent on the nominations.   Presidents are permitted to make appointments without Senate confirmation only during a recess.  The Obama Administration has claimed authority to make such appointments because they have found the Senate was on a 20-day recess, even though it has held periodic pro forma sessions in which no business is conducted.

A New York landlord has challenged the recess appointments arguing that the NRLB lacked standing to bring a federal case against Renaissance Equity Holdings, LLC in the U.S. District Court for the Eastern District of New York, Case No. 12-350, on the grounds that the Board lacked the necessary legal quorum to bring such actions.  In Paulsen v. Renaissance Equity Holdings, LLC, the Board’s regional counsel has filed an action accusing Renaissance of unlawfully locking out union workers after failing to reach a new collective bargaining agreement.  In a hearing before the court on March 1, 2012, Renaissance argued that President Obama overstepped his recess appointment authority.  Although most of the Senate was not in Washington D.C. at the time, legislators held sessions that often included only a few members and lasted a couple minutes.  The argument contends that, despite these sessions, the Senate was not technically in recess at the time of the appointments.  In this case, however, the Court may not need to decide if the recess appointments were valid as the Board’s lawyers have argued that no quorum was required because the Board previously delegated its authority to bring this type of case to its acting general counsel.

While the issue may not be decided by the Court in Renaissance, this is not the only case challenging the recess appointments.  On Feb. 13, 2012, a similar argument was cited in a motion to dismiss a petition in which the NLRB accuses another New York accused of firing five workers for seeking to unionize. On Feb. 23, 2012, an Illinois employer also raised the argument in its response to a petition in which the Board accuses it of moving work from the U.S. to Mexico after its employees went on strike.

 By: Justin A. Morocco