Trade Groups Argue Right to Challenge Obama Appointments

President Barack Obama’s appointments to the National Labor Relations Board were “invalid” and “threaten to harm” millions of employers and workers, trade groups said in a court filing after the U.S. sought to have their challenge dismissed.

The 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 trade groups also challenged Obama’s Jan. 4 appointment of three members to the NLRB, without Senate confirmation, during a congressional break. The U.S. has asked a federal judge in Washington to reject the challenge, arguing that the trade groups lack authority and the dispute isn’t ready for adjudication.

“Millions of employers are faced with immediate confusion and uncertainty as to their notice posting obligations due to the widely publicized questions regarding the constitutional legitimacy of the current board,” the trade groups said in today’s filing.

The groups urged U.S. District Judge Amy Berman Jackson to rule on the legality of the appointments to avoid “widespread confusion” and forestall challenges to the NLRB’s authority in multiple cases.

‘Public Interest’

“It is plainly in the public interest to resolve the serious questions regarding the board’s authority as soon as possible,” according to the filing.

U.S. Senator John Cornyn and 38 of his Republican colleagues said today that they would be filing a brief and join a court challenge to Obama’s recess appointments to the NLRB and Consumer Financial Protection Bureau. The senators didn’t say whether they would seek to enter the NLRB union-rule case.

Since the Jan. 4 appointments, the NLRB has issued announcements and instructions to employers through its website and in letters for implementing the rule, scheduled to take effect April 30, trade groups said in today’s filing.

The actions, the groups allege, are “unauthorized and unlawful” because the labor board, minus the three recess appointees, doesn’t have a quorum to transact business.

‘Futile and Prejudicial’

Eric Moskowitz, an NLRB lawyer, said in a Jan. 30 filing that the trade groups shouldn’t be able to revise their complaint to question the board’s authority to enforce the new rule. He called the request “futile and prejudicial.”

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 to keep Obama from filling vacancies.

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

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