Washington, DC (January 13, 2012) – Today, National Right to Work Foundation attorneys filed a motion in federal court challenging the legality of President Barack Obama's recent purported recess appointments to the National Labor Relations Board (NLRB).
The legal challenge is part of a larger case attacking controversial new NLRB rules that require every employer to post incomplete information about employee rights online and in the workplace, even if they've never violated or been accused of breaking federal law. The NLRB's posting rules do not require union officials to issue information about workers' rights to refrain from union membership or opt out of union dues. Currently employers can only be required to post notices if the Board has ruled that a violation of labor law occurred.
The Foundation's case has been consolidated with other legal challenges to the biased NLRB notice posting rules brought by the National Federation of Independent Business (NFIB), Coalition for a Democratic Workplace (CDW), and two small businesses. Those parties filed the joint motion today raising the issue of the NLRB's lack of authority to implement the rule given the unprecedented recess appointments.
The new filings in the U.S. District Court for the District of Columbia case comes after NLRB lawyers notified the court that President Obama's recent recess appointees were now parties in the ongoing legal battle. Under the U.S. Supreme Court's New Process Steel decision, the NLRB needs three members to act. However three of the five current NLRB members were installed by unilateral Presidential appointment earlier this year, despite the fact that the Senate was not in a self-declared recess.
In the motion papers, Foundation attorneys argue that the controversial appointees to the Board are not legitimate because the U.S. Senate is still in session per the body's rules, so there was no "recess" for the President to make appointments without Senate confirmation. Therefore the NLRB lacks the necessary quorum to implement the new posting rules. Foundation attorneys are asking the judge to rule on the constitutionality of the three recess appointees.
"President Barack Obama has already shown time and again that he is willing to abuse his executive authority to force more workers into union-dues-paying ranks," said Mark Mix, President of the National Right to Work Foundation. "Now Obama's executive abuse jeopardizes the constitutional balance our country holds very dear, all in the name of paying back his Big Labor benefactors."
The implementation of the NLRB's new posting rules, originally supposed to be in August of last year, has been twice delayed due to the legal challenge in the Foundation's case. The rules are currently scheduled to be effective on April 30, 2012.
The National Association of Manufacturers (NAM) is also a party in the case, but is not party to the Foundation's motion.