Employment Law Report

NLRB Rejects Contention That Recess Appointments of Some of its Members Were Invalid

By Edwin S. Hopson

On March 29, 2012, in Center For Social Change, Inc., 358 NLRB No. 24 (2012), the five member National Labor Relations Board unanimously rejected a contention by the respondent that President’s Obama’s recess appointments of Members Block, Griffin and Flynn in January 2012, were invalid and that therefore the Board lacked a quorum to decide the case.  Both Republican appointees joined in the decision.  The rationale for the decision was explained as follows:

“Historically, the Board has declined to determine the merits of claims attacking the validity of Presidential appointments to positions involved in the administration of the Act. Instead, it has applied the well-settled presumption of regularity of the official acts of public officers in the absence of clear evidence to the contrary. See, e.g., Lutheran Home at Moorestown, 334 NLRB 340, 340–341 (2001) (challenge to authority of Acting General Counsel) (citing U.S. v. Chemical Foundation, 272U.S. 1, 14–15 (1926)).”