House Blockage of Presidential Recess Appointments May Impact NLRB

In July, 2011, Congressman Jeff Landry, a Republican from Louisiana, announced that he was part of an effort in the U.S. House of Representatives intent on keeping the House of Representatives in session continuously in order to prevent the U.S. Senate from going into recess without the House's consent.  The purpose is to prevent President Obama from issuing recess appointments.  The last recess appointment, according to Representative Landry, was Craig Becker to the National Labor Relation Board.  In a July 1, 2011, press release, Landry stated:

"This morning - under the instruction of Speaker Boehner, Leader Cantor, and Whip McCarthy - I presided over a pro forma session in the United States House of Representatives, preventing Congress from going into recess and blocking President Obama from issuing recess appointments. * * *  Under Article 1, Section 5 of the Constitution, the House of Representatives can prevent the Senate from recessing by withholding its consent.  Simply put:  we do so by voting down, or not considering, a Senate adjournment resolution.  And when we do so, we block the Administration's ability to make recess appointments."

Congressman Landry, in his press release, stated that he is leading a coalition of 77 freshmen Congressmen requesting that the House Republican leadership take measures to prevent any recess appointment by President Obama for the remainder of the 112th Congress.

The impact of this action could be a cessation of the National Labor Relations Board's ability to issue decisions after December 31, 2011, when Member Becker's recess appointment expires.  At that time it will be down to two members.  Under the U.S. Supreme Court's decision in New Process Steel v. National Labor Relations Board, 130 S. Ct. 2635 (2010), the NLRB lacks the power under the National Labor Relations Act to issue decisions once the five member board gets down to less than three members.

Read about additional Labor and Employment Law Developments by Edwin S. Hopson in the Wyatt Employment Law Report.

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