NFIB Challenges “Recess” Appointments to National Labor Relations Board

Adds New Claims to “Poster Rule” Lawsuit

WASHINGTON, D.C. — Amending its existing challenge to the National Labor Relations Board’s (NLRB) “Notice Posting Rule,” the National Federation of Independent Business (NFIB) today added new claims, alleging that the Board appointments issued on January 4, 2012, violate the Constitution. The amended complaint argues that the Board does not possess the authority to enforce the poster rule, as the agency is operating without a legal quorum since the three appointments last week are not permissible under the law.

“The President’s action was a surprise and terrible disappointment to small-business owners throughout the country who have suffered under the unabashedly pro-union rule-makings handed down by the NLRB,” said Karen Harned, executive director of NFIB’s Small Business Legal Center. “These alleged recess appointments are a brazen circumvention of the Congressional appointment process and raise serious legal concerns that cannot be ignored. The outrage amongst members of the small-business community is severe, and NFIB takes this action today to ensure that its members are protected from unconstitutional acts that exacerbate the NLRB’s devolution from a neutral arbiter between labor and employers to a pro-union government agency.”

Facts about NFIB’s updated complaint challenging the “Notice Posting Rule”:

• Because Congress is not in recess, the President’s appointment of three members to the Board is invalid. With three positions unfilled, the Board no longer has the quorum necessary to conduct business.
• Absent a quorum, the Board is not authorized to implement or enforce the challenged Rule.
• NFIB’s lawsuit charges that the NLRB’s promulgation of the new rule is an overreach of its statutory authority under the National Labor Relations Act (NLRA).
• The rule will impact all employers, including those with no history of NLRA violations.
• According to NLRB estimates, the rule will impact up to six million private-sector businesses around the country.
• The lawsuit asks the court to set aside the rule and declare that the NLRB’s action violates the NLRA.
• Small businesses are particularly vulnerable to accidental violations because the regulatory compliance burden most often falls on the small business owner and because small businesses do not have dedicated compliance staff.

NFIB is the nation’s leading small-business advocacy organization, representing 350,000 small businesses around the country.

Via National Federation of Independent Business (NFIB).