D.C. Circuit orders NLRB to file response to petition in union lobbying case

Jessica M. Karmasek Feb. 26, 2013, 3:45pm

WASHINGTON (Legal Newsline) -- A federal appeals court has ordered the National Labor Relations Board to file a response to a petition filed by a worker advocate group earlier this month.

The group, the National Right to Work Foundation, filed its petition for writ of mandamus or prohibition Feb. 11, asking the U.S. Court of Appeals for the District of Columbia Circuit to order the NLRB to suspend further action in a case that expanded union bosses' powers to charge non-member workers for union political lobbying.

According to the D.C. Circuit's one-page order filed Friday, the NLRB must file a response to the group's petition "not to exceed 30 pages" and within 30 days of the order.

The group, the court noted in the order, may file a reply; however, it is "not to exceed 15 pages" and must be done so within 14 days of the board's filing of its response.

The foundation filed its petition in the wake of the court's ruling invalidating President Barack Obama's "recess appointments" to the NLRB.

Last month, the D.C. Circuit ruled that the President's "intrasession appointment" of three new members to the board was an unconstitutional abuse of power because he could not make those appointments without U.S. Senate confirmation because the Senate was not in recess.

National Right to Work Foundation staff attorneys filed an amicus curiae brief jointly with the Landmark Legal Foundation in the case, Noel Canning v. NLRB.

As a result of the D.C. Circuit's ruling, since at least January 2012 the board has lacked a quorum as required by a U.S. Supreme Court precedent established in 2010, thus invalidating its rulings since that time.

In the case at issue, former Warwick, R.I., nurse Jeanette Geary filed a federal unfair labor practice charge against a local nursing union for illegally forcing her and other employees to pay for the union's lobbying or lose their jobs.

Last year, the NLRB held that the union hierarchy could force the nurse and her coworkers to pay for the union's lobbying, including political lobbying in the state of Vermont, but asked for further briefs before it issues an appealable final order.

However, in Communications Workers of America v. Beck, the nation's highest court held that unions are authorized by statute to collect from non-members only those fees and dues necessary to perform its duties as a collective bargaining representative.

The Court's 1988 decision stated that workers who refrain from full-dues-paying union membership cannot be compelled to pay for union political spending, lobbying, member-only events and similar non-representational activities.

The foundation's attorneys filed the last-resort petition earlier this month, asking the D.C. Circuit to bar the NLRB from further action in the case until a valid board is seated.

"Jeanette Geary's case is just the latest example of how independent-minded workers have received unjust treatment at the hands of Obama's illegal, pro-big labor NLRB," said Mark Mix, president of the National Right to Work Foundation.

"The board must cease its illegal activities expanding union boss powers in the face of long-held Supreme Court precedent and constitutional case law prohibiting union bosses from taking workers' dues for union politics."

He added, "The extraordinary circumstances involving Obama's out-of-control NLRB, which has already proceeded to ignore the appeals court's ruling, has created the urgency for foundation staff attorneys to employ an extraordinary legal move to halt the board's unconstitutional actions."

The National Right to Work Legal Defense Foundation describes itself as a nonprofit, charitable organization providing free legal aid to employees "whose human or civil rights have been violated by compulsory unionism abuses."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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