Lawsuit Challenges NLRB Recess Appointments

On Jan. 13, 2011, the Coalition for a Democratic Workplace – of which AGC is a member – and co-plaintiffs filed a motion to amend their complaint challenging the NLRB’s employee notice rule to add a count challenging the Board’s authority to implement or enforce the rule with only two members.  The motion alleges that the recess appointments of Richard Griffin, Sharon Block and Terry Flynn are unconstitutional. The Supreme Court’s New Process Steel decision stated that the board must have three members to perform certain duties; therefore the two-member board is inadequate. While awaiting a ruling on the motion, the coalition is also gathering resources to mount a separate legal challenge focused on the recess appointments.  They are currently looking for a suitable employer with a pending matter before the Board. AGC will continue to monitor the legal challenges and urges the president to work with the Senate and seat a balanced board.  In addition to the legal challenges, bills have been introduced in the House that would ban these types of recess appointments.  The Executive Appointments Reform Act (H.R. 3770) and a nonbinding resolution were introduced in the House. Leadership has not decided whether either of these bills will receive a vote. For more information, please contact Jim Young at (202) 547-0133 or youngj@agc.org.