Chamber joins court challenge against NLRB recess appointments

By Kevin Bogardus - 03/15/12 04:03 PM ET

The U.S. Chamber of Commerce has joined a court challenge against President Obama's recess appointments to the National Labor Relations Board (NLRB).

The Chamber, along with the Coalition for a Democratic Workplace, has filed a motion for leave to intervene in a case involving Noel Canning, a contract canning and bottling division of the Noel Corp. The business, based in Yakima, Wash., was involved in a dispute with a local Teamsters union, and the NLRB last month ruled Noel Canning violated the National Labor Relations Act.

Canning's case is now before the U.S. Court of Appeals for the D.C. Circuit. The Chamber wants to argue that Obama’s recess appointments to the NLRB, made in January, were not legal. The business group says the Senate was in session at the time of the appointments, not in recess, as the White House claims.

“Appointing three of five members to the NLRB in a legally questionable way casts doubt on the work of the entire agency,” said Tom Donohue, the Chamber's president and CEO, in a statement. “We cautioned in January that shoehorning these nominees into office in this controversial way would throw the legal validity of every decision of the Board into question. Our concern has now become a reality.

“We are simply asking the courts to sort out the question of the NLRB’s authority quickly, so that employers and employees alike can have predictability and certainty.”

The White House has argued that Obama was on sound legal footing when he appointed Sharon Block, Terence Flynn and Richard Griffin to the labor board. They argue that the Senate’s pro forma sessions — which involve banging the gavel once every three days — do not prevent the president from making the appointments because the Senate is actually in recess.

The courts have ignored one legal challenge to the recess appointments already. In a ruling earlier this month regarding the NLRB's rule that would have employers post notices explaining collective bargaining rights, Judge Amy Berman Jackson said the court would not take up “a political dispute” over the appointments.