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Latest News - March 2012

March 1, 2012
NLRB appointments at issue in Brooklyn labor case
Source: Thomas Rueters
By: Jessica Dye

NEW YORK, March 1 (Reuters) - A labor dispute may be turned into a test case for whether President Barack Obama overstepped his constitutional authority when he used his recess appointment powers to install three members to the National Labor Relations Board.

The dispute stems from a lawsuit filed by the board's regional counsel, accusing an apartment complex owner, Renaissance Equity Holdings LLC, of illegally locking out some 70 union workers after they failed to strike a new collective bargaining agreement.

During oral arguments on Thursday, former U.S. Solicitor General Paul Clement, who represents Renaissance, asked U.S. District Court Judge Brian Cogan in Brooklyn to dismiss the case. Clement said that the NRLB had no standing to bring the federal case against Renaissance because it lacked the legal quorum required to bring such actions.

Clement told the court that Obama had overstepped his authority by using his recess appointment authority to put two Democrats and one Republican on the five-member NLRB last January. Although most of the Senate was out of town at the time, legislators held sessions that often included just a few members and lasted seconds.

Clement said the appointments were not valid because the Senate was not technically in recess at the time of the appointments. Clement said that would mean the NLRB operated with only two members. In 2011, the U.S. Supreme Court held in New Process Steel v. NLRB that two members are not enough for a NLRB quorum.

Lawyers for the U.S. Department of Justice argued that no quorum was needed because the board had previously delegated the authority to bring this kind of case to its acting general counsel. But if Cogan did reach the constitutional question, a lawyer for the DOJ said the president had acted within his legal authority in making the appointments.

Cogan gave no indication of whether he would rule narrowly on the merits of the labor petition or the broader constitutional issue.

This is not the only case in which Obama is facing a legal challenge to his most recent batch of appointments. In January, a group of business organizations filed a lawsuit in the federal court in Washington, D.C., challenging the constitutionality of the appointments.

The case is Paulsen v. Renaissance Equity Holdings LLC, in the U.S. District Court for the Eastern District of New York, No. 12-350.

For Paulsen: Aggie Kapelman, Tara O'Rourke, Emily Cabrera of the National Labor Relations Board; Ethan Davis and Ian Gerhshengorn of the U.S. Department of Justice; and Laura Vazquez of the NLRB Injunction Litigation Branch.

For Renaissance: James McGuire of Dechert; Paul Clement, H. Christopher Bartolomucci and Viet Dinh of Bancroft; and Stanley Goodman and Brian Caufield of Fox Rothschild.

For amicus Coalition for a Democratic Workplace (on behalf of Renaissance): Michael Carvin and Noel Francisco of Jones Day.

(Reporting by Jessica Dye)




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