Arizona Fry's Workers File Brief Challenging Obama NLRB "Recess Appointments"
Union officials' illegal forced-dues scheme violated possibly thousands of workers' rights
Washington, DC (December 19, 2012) – With free legal assistance from the National Right to Work Foundation, several employees from Fry's Food Stores locations in Arizona are challenging President Barack Obama's recent purported recess appointments to the National Labor Relations Board (NLRB).
Shirley Jones of Mesa, Karen Medley and Elaine Brown of Apache Junction, Kimberly Stewart and Saloomeh Hardy of Queen Creek, and Tommy and Janette Fuentes of Florence initially filed federal unfair labor practice charges against the United Food & Commercial Workers (UFCW) Local 99 union hierarchy and Fry's management after union and company officials continued to seize union dues from their paychecks despite repeated requests to stop.
Because Arizona has a Right to Work law, workers cannot be required to pay union dues as a condition of employment. Upset by a UFCW Local 99 boss-initiated strike threat, the employees resigned union membership and revoked their dues deduction authorizations – used to automatically extract union dues from employee paychecks – during a time in which the union did not have a contract at their workplaces.
The charges spurred the NLRB Regional Director in Phoenix to find that the dues deduction authorizations used by UFCW Local 99 union officials at all Arizona Fry's Food Stores locations were misleading because they do not allow employees to revoke them once a contract terminates, as required by federal law.
In the workers' latest brief to the U.S. Court of Appeals in Washington, D.C., Foundation staff attorneys argue that the "recess appointments" are unconstitutional and, therefore, the Board lacks the quorum necessary to hear any cases. If Obama's NLRB appointments are unconstitutional, then the Board has only two valid members and lacks a quorum to enact rules or enforce federal labor law under a U.S. Supreme Court precedent established in 2010.
Two other Foundation-supported challenges to Obama's purported recess appointments are pending in federal appeals courts in Washington, D.C. and Chicago.
"The Constitutional chaos created by Barack Obama's so-called recess appointments to the Labor Board continues to reverberate across the country," said Mark Mix, President of the National Right to Work Foundation. "Foundation staff attorneys are prepared to challenge Obama's unconstitutional actions before the U.S. Supreme Court if necessary."
Comments
Is the RTW Foundation being unethical here?
If the NLRB's regional director has issued a complaint asserting that the dues checkoff forms are improper, and the union is defending on the grounds that the NLRB lacked a quorum because of the recess appointments, why do the workers need the RTWF to support the union's point of view? If you, the RTWF, agree that the recess appointments shouldn't stand, aren't you arguing against your employee-clients' interests? After all, the Board's regional director is seeking to void the union's view that the checkoffs are legal. Isn't that what RTW should be arguing? But you are taking the union's side, asserting that the NLRB can't act. In doing that, the RTWF is acting in a manner inconsistent with its duty to its clients. That's unethical.
If the employees asked me, I'd recommend that your representation be terminated as you are arguing against your clients' best interests.
Is the RTW Foundation being unethical here?
Actually, challenging the "recess" appointments is perfectly ethical and in the best interests of the Foundation Staff Attorney's clients because (1) the current Board, consists entirely of Obama appointees who have repeatedly demonstrated in their decisions a bias in favor of union bosses and against employees who wish not to associate with unions, and (2), unlike the charging parties' Foundation attorney, the Obama-appointed Acting General Counsel who is theoretically prosecuting the case has not made the best arguments for the charging party employees. As it happens, the Foundation attorney's clients are willing to wait for a decision by a Board that is not stacked with unconstitutionally appointed members.
Raymond J. LaJeunesse, Jr.
NRTWLDF Vice President & Legal Director
Don't hold your breath!!!!!
I guess you'll be waiting a little bit longer, since he was re-elected......
NLRB Unconstitutional Appointments
No. That's incorrect. The landmark case before the U.S. Supreme Court, establishes the case law for the NLRB. Under Article II Section II, the President may fill vacancies that arise, if and only if, the U.S. Senate is in recess. In the case of the NLRB appointees, the U.S. Senate was not officially in recess, and the U.S. Court of Appeals for the D.C. Circuit, correctly applied the scheme under the U.S. Constitution, by noting that the U.S. Senate's pro forma quorum called the 113th Congress into session. So, whatever manner you apply, the U.S. Senate was not in recess. Therefore, President Obama's appointments are in fact unconstitutional. Congress shall legislate, and appointees must be confirmed by the U.S. Senate. The President does not override the U.S. Constitution. And, the President's appointments violates the integrity of the "Separation of Powers."