NOTE: This article is from the March-April issue of Foundation Action, our bi-monthly newsletter. You can sign up to receive a print edition of the newsletter here.
Foundation's Brief Puts Illegitimate NLRB Appointeees on the Spot
Order sought would force NLRB to cease and desist as long as illegal "recess" appointees remain
WASHINGTON, DC - In late January 2013, the U.S. Court of Appeals for the District of Columbia struck down President Obama’s controversial “recess” appointments to the National Labor Relations Board (NLRB). Obama made those “recess” appointments on January 4, 2012, despite the fact that the U.S. Senate was not in recess.
Upon the court’s announcement striking down Obama’s “recess” appointments, NLRB Chairman Mark Pearce issued a statement that the rogue Board was going to continue to operate as normal despite the appeals court decision.
In response, Foundation staff attorneys filed a petition for a writ of mandamus (or prohibition) with the U.S. Court of Appeals for the District of Columbia Circuit asking the court to order the NLRB to suspend further action in a union political lobbying case in which the Board defied Foundation-won Supreme Court precedent and granted union bosses the power to charge nonmember workers for union political lobbying activities.
A mere 12 days after the petition was filed, the court ordered the NLRB to respond and justify its continuing operation.
“For the first time, the NLRB must justify why it is continuing to operate despite the court’s finding that President Obama’s ‘recess’ appointments are constitutionally invalid,” said Ray LaJeunesse, Foundation Legal Director. “And if the court shuts down the NLRB in this case, it will open the door for challenges in the other cases ruled on by Obama’s so-called ‘recess’ appointments.”
Worker protections at risk
As a result of the appeals court’s ruling, since at least January 3, 2012, the Board has lacked a quorum as required by a 2010 U.S. Supreme Court precedent – thus invalidating the Board’s more than 800 rulings and orders since that time.
One of those cases involves Jeanette Geary, a former Warwick, Rhode Island nurse at Kent Hospital, who filed federal charges against a local nursing union with the National Labor Relations Board (NLRB) in September 2009. The United Nurses and Allied Professionals (UNAP) union hierarchy was illegally forcing Geary and some of her coworkers, all nonmembers, into paying for the union bosses’ lobbying, including lobbying for legislation in neighboring Vermont.
The U.S. Supreme Court has long held that nonmember workers cannot be compelled to pay for union boss politics. The U.S. Supreme Court held in the National Right to Work Foundation-won Communications Workers v. Beck case that nonmember workers cannot be forced to pay for union activities unrelated to workplace bargaining, such as members-only events and union political lobbying.
However, in December 2012, the invalid NLRB expanded union bosses’ powers to charge nonmember workers for union lobbying by a vote of three to one – flying in the face of long-standing Supreme Court precedent. The Board then retained jurisdiction over the case pending further briefing on applying the ruling, forcing Foundation staff attorneys to file the petition that spurred the appeals court to demand an answer from the NLRB on the “recess” appointments issue.
Meanwhile, various federal appeals courts across the country are hearing similar challenges to the NLRB recess appointments. Foundation staff attorneys brought the issue before the U.S. Court of Appeals for the Seventh Circuit in Chicago and have another challenge pending in the U.S. Court of Appeals for the District of Columbia Circuit. Moreover, challenges from other organizations are pending before the U.S. Court of Appeals for both the Third and Fourth Circuits.
NLRB appeals loss to U.S. Supreme Court
The three judge panel on the appeals court that struck down President Obama’s “recess” appointments ruled that Obama violated Article II of the U.S. Constitution, which requires the President to obtain the advice and consent of the U.S. Senate for appointments to the most powerful positions in the executive branch, and Article 1, Section 5, Clause 4 of the Constitution, which clearly states that Congress decides when there is a recess.
The appeals court adopted arguments made in an amicus curiae (“friend of the court”) brief filed by National Right to Work Foundation staff attorneys for four workers who are receiving free legal assistance from the Foundation in cases pending before the Board.
After conferring with President Obama’s Department of Justice, the NLRB announced in mid-March that it will appeal the appeals court’s decision striking down Obama’s “recess” appointments to the U.S. Supreme Court. The NLRB’s appeal sets up a no-holds-barred fight over Obama’s “recess” appointments before the High Court.
“We hope the Supreme Court will take this opportunity to rein in the out-of-control NLRB and restore the balance of power the constitution intended,” stated Mark Mix, President of National Right to Work. “A favorable ruling could shut down the NLRB for the rest of Obama’s presidency, or at least flood it with a backlog of old cases the Board will have to reconsider, thus slowing its onslaught against workers’ rights.”