Obama Labor Board Recess Appointments Challenged in New York Lockout Trial

A court petition seeking to halt a lockout of 70 workers at a Brooklyn, New York, apartment complex should be thrown out, a lawyer told the judge in the case, which may test whether President Barack Obama’s January appointments to the National Labor Relations Board are legal.

The petition isn’t valid because the board that voted to file it lacked a quorum, the landlord’s lawyer, Paul D. Clement, told U.S. District Judge Brian M. Cogan at the hearing today in Brooklyn.

Obama appointed three members to the board on Jan. 4, bypassing the Senate by asserting lawmakers were in recess and unable to act on nominations. A president is permitted to make appointments without Senate confirmation during a recess, though Republicans dispute that was the case at the time.

“We’ve never had an attempted recess appointment like this,” said Clement, who was solicitor general and acting attorney general under President George W. Bush.

Other defendants have invoked the quorum argument since the Brooklyn case was filed.

On Feb. 13, the argument was cited in a motion to dismiss a petition in which the NLRB accuses a New York supermarket of firing five workers for seeking to unionize. On Feb. 23, an Illinois lighting-equipment maker raised the argument in its response to a petition in which the labor board accuses it of moving work from the U.S. to Mexico because its employees went on strike.

Trade Groups

Trade groups including the National Association of Manufacturers have also said the appointments were invalid in litigation seeking to block a rule mandating that companies notify workers of their rights to form a union.

Obama has since sent the Senate the nominations of the three candidates.

Cogan, who ended the hearing without ruling, said at least three times that the appointments were made to avoid the Senate’s role in consenting to nominations.

The recess-appointment method was “invoked for the express purpose of circumventing the approval process,” he said.

On Jan. 6, the U.S. Justice Department issued a memo that “the convening of periodic pro forma sessions in which no business is to be conducted” doesn’t preclude the president from making recess appointments.

The landlord’s constitutional challenge must fail because the Senate was in recess when Obama made the appointments, said Ian H. Gershengorn, a Justice Department lawyer arguing for the labor board. During the recess, the Senate had lone members “gavel in and out” of the chamber with no business conducted, Gershengorn said.

‘Cessation of Work’

“There’s no way you can look at what the Senate was actually doing and say that was not a cessation of work,” he said.

The labor board started this year with two members, which isn’t enough to make decisions such as whether to file the Brooklyn case. Obama then appointed Sharon Block, Richard Griffin and Terence Flynn.

Brooklyn-based Renaissance Equity Holdings LLC, which owns Flatbush Gardens, a 59-building, 2,500-unit complex in the Flatbush neighborhood, said the Senate never adjourned and that the president can’t make recess appointments when the legislative body holds “pro forma” sessions, which it said it did.

“The problem with this case is that the board only has two duly appointed members, although it incorrectly purports to have five,” Renaissance wrote in court papers.

General Counsel

Apart from whether the three board members were properly appointed, the NLRB said the lawsuit was validly filed because last year it gave Lafe Solomon, its acting general counsel, authority to approve such court actions.

“It’s something the board can delegate if it chooses to delegate,” Laura T. Vazquez, an NLRB lawyer, told Cogan. “The court does not need to reach the constitutional issue and should not.”

Renaissance argued that power ended when the board lost its quorum.

The Flatbush porters and handymen, many of whom filled the courtroom gallery today, were frozen out of their jobs in November 2010 after they refused to accept an at least 30 percent pay cut. The Service Employees International Union Local 32BJ is seeking to have them returned to work at the higher wages they were making while the dispute is resolved.

The labor board filed the court case on Jan. 25 saying there was “reasonable cause to believe” that Renaissance engaged in unfair labor practices and the lockout should end.

The union said in court papers that Renaissance is trying to eliminate organized workers from the complex.

The case is Paulsen v. Renaissance Equity Holdings LLC, 12- cv-350, U.S. District Court for the Eastern District of New York (Brooklyn).

To contact the reporter on this story: Thom Weidlich in Brooklyn, New York, federal court at tweidlich@bloomberg.net.

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net.

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