Petitions asked federal court to order the Board to cease and desist deciding cases as long as NLRB lacks three legitimate members
Washington, DC (May 7, 2013) – Today, the U.S. Court of Appeals for the District of Columbia Circuit ordered a consolidation and renewed briefing in three mandamus cases, all of which asked the Court to order the National Labor Relations Board (NLRB) to suspend further action in the wake of the Court’s ruling in Noel Canning invalidating President Barack Obama’s controversial “recess appointments” to the Board.
In Noel Canning, the Court held that the President’s “recess appointments” were invalid because the Senate was not in recess, and because the vacancies the President purported to fill did not “happen” during such a recess, as required by the United States Constitution. Consequently, the Board has lacked a quorum to issue decisions since January 3, 2012, potentially invalidating all NLRB rulings made during that period. The mandamus petitions seek to apply the Noel Canning ruling to cases currently before the NLRB.
One of the three consolidated mandamus petitions was filed by National Right to Work Foundation attorneys on behalf of Jeanette Geary, a former Rhode Island nurse. Geary originally filed an unfair labor practice charge against a local nursing union for illegally forcing her to pay for union lobbying as a condition of employment.
In 2012, a Board panel including two illegal recess appointees held that union officials could require Geary and her coworkers to pay for the union’s lobbying efforts, in clear violation of Foundation-won Supreme Court cases. Instead of issuing a final order which could be appealed in federal court, the NLRB asked for further briefs on the issue of charging non-members for union boss lobbying.
In February 2013, Foundation attorneys filed their petition for a writ of mandamus or prohibition asking the DC Court of Appeals to bar the NLRB from further action in Geary’s case until a valid Board is seated. That petition has now been consolidated with two similar cases, and oral argument is expected in September 2013.
“Illegally-installed Obama NLRB appointees consistently favored the interests of union bosses over the rights of independent-minded workers,” said Mark Mix, President of the National Right to Work Foundation. “We hope this latest development will finally force this illegitimate NLRB to stop operating and stop undermining employees’ right to refrain from supporting Big Labor’s political agenda.”