This week marked the first in a decade in which all five National Labor Relations Board members were confirmed by the U.S. Senate. . .
Hans Bader, senior attorney with the Competitive Enterprise Institute in Washington, D.C., which supports free market principles, said having a fully-staffed board doesn't resolve issues relating to the recess appointments. The Supreme Court has agreed to decide if Obama's NLRB appointments last year violated the Constitution. The court will review a decision earlier this year by a three-judge federal appeals court panel that ruled against the administration. In fact, the panel broadly called into question the constitutionality of many recess appointments by presidents of either party.
If Obama's appointments weren't valid, that means the board lacked a quorum. Bader said that would also mean hundreds of NLRB decisions could be called into question. He said one solution for avoiding this would be for the NLRB to reaffirm decisions made without a quorum. "They can't reaffirm those decisions all en masse," Bader said. "They will have to look at them individually.
"They have to look at them again, while pretending it is not a rubber stamp," he said. "They have to pretend they have an open mind. They have to go back and look at the record and reach the conclusion. It is going to take a lot of time."