Raymond LaJeunesse Jr., who is vice president and legal director of the National Right to Work Legal Defense Foundation, Inc., said he is advising clients in pending cases to make motions to disqualify the board from voting. The foundation has also petitioned the D.C. Circuit to order the NLRB to stop enforcing its 2012 decision in the Kent Hospital case, which allows unions to use dues to pay for certain lobbying activities even if members opted out of having their money used for political causes.
N. Elizabeth Reynolds, a partner at Allison, Slutsky & Kennedy who represents labor unions and workers, offered her own real-world example of the fallout from the D.C. Circuit decision.
The board found one of her clients was illegally fired for his union activities and ordered his employer to reinstate him with back wages. It was a straightforward case, she said. But now its on hold and the man is working an entry-level job for a fraction of the earnings and has lost his house.
She described the objections to the recess appointments as a sustained series of attacks on the board by special interests who do not have the interests of American workers at heart.
The witnesses disagreed whether it was appropriate for the board to continue to operate, given the D.C. Circuits holding.
Reynolds argued that the appointments are in fact legitimate and the board should carry on. Its like suggesting that the police should stop enforcing a law when one court found it unconstitutional and three courts held it was constitutional, she said.
The government has yet to ask the U.S. Supreme Court to review the decision, but three other circuitsthe Second, Ninth and Eleventhhave rejected constitutional challenges to recess appointments. But the facts in each case were different, said King. Still, he admitted Three circuits have a different view of the recess appointment clause. This is ripe for certiorari today.
This article originally appeared on The BLT: The Blog of LegalTimes.