Board Must Defend Recess Appointments, Court Says

February 22, 2013

A federal appeals court allowed a legal challenge to the National Labor Relations Board to move forward on Friday, casting additional doubt on the legitimacy of the Obama administration’s embattled labor arbiter.

A three-judge panel from the D.C. Circuit Court ordered the board to file a written response defending President Barack Obama’s recess appointments.

The ruling stems from the National Right to Work Legal Defense Foundation’s (NRTW) appeal to an NLRB ruling that forced non-union employees to pay for union lobbying costs. National Right to Work attorney Glenn Taubman said the board’s decision violates Beck Rights, which allow employees to opt out of union.

NRTW’s appeal, however, relied more heavily on challenging the legitimacy of the board’s composition than it did the "merits of workers being coerced to pay for unions’ partisan political agenda," according to Taubman.

"This is really just about the recess appointments," he said. "They have no authority to act, and the courts should forbid them from acting on this case or any others."

The circuit court order follows a separate D.C. court ruling that declared President Obama’s January 2012 recess appointments of Democrats Richard Griffin and Sharon Block unconstitutional. Numerous appeals have been filed in the D.C. circuit seeking to overturn NLRB decisions issued during that time.

The board has refused to acknowledge the earlier ruling and continues to issue decisions in major labor disputes.

NLRB spokeswoman Nancy Cleeland said the board does not comment on ongoing litigation but noted that the future of many appeals will have to wait for a higher court to decide on the recess appointments.

"[This] is a request for response, not a ruling … an incremental thing that we don’t comment on," she said. "The D.C. Circuit has been holding a lot of NLRB cases until the bigger question of the recess appointments is resolved in the courts."

The court’s request for response demonstrates its willingness to take on the board and could have major implications for other parties waiting to appeal NLRB decisions, Taubman said.

"[The order] means the Court of Appeals is taking a serious look at shutting down the board," he said. "The implication for other cases is clear if they shut down the board in our case."