Challenge to Obama’s NLRB Appointments ‘Futile,’ U.S. Says

The U.S. asked a judge to reject a challenge to the Obama administration’s appointments to the National Labor Relations Board while the Senate was out of town, calling the effort “futile.”

Trade groups, including the National Association of Manufacturers, the National Right to Work Legal Defense and Education Foundation and the National Federation of Independent Business last year sued to block a rule mandating that companies notify workers of their rights to form a union.

After suing, some of the plaintiffs also challenged President Barack Obama’s Jan. 4 appointment of three members to the National Labor Relations Board, without Senate confirmation, during a congressional break. The trade groups lack authority to mount such a challenge and the dispute isn’t ready for adjudication, the U.S. said in a court filing yesterday.

“The overwhelming majority of unfair labor practice cases are finally resolved at the regional office level by withdrawal, dismissal or settlement and never reach the board,” Eric Moskowitz, an NLRB lawyer, told U.S. District Judge Amy Berman Jackson in the filing in federal court in Washington.

Moskowitz said the trade groups shouldn’t be able to revise their complaint to question the board’s authority to enforce the new rule, which is due to take effect at the end of April.

Republican lawmakers criticized Obama’s decision to name three NLRB members and the first head of the Consumer Financial Protection Bureau, Richard Cordray, during the congressional recess when the Senate was in so-called pro forma session.

The Constitution gives presidents the power to make appointments when the Senate is in recess. Republicans won bipartisan agreement to keep Congress in pro forma sessions every three days through the holidays in an attempt to keep Obama from filling vacancies.

The case is National Association of Manufacturers v. National Labor Relations Board, 1:11-cv-01629, U.S. District Court, District of Columbia (Washington).

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