No Standing to Challenge President's NLRB Recess Appointments

The Seventh Circuit ruled last week in Richards v. NLRB that the petitioners lacked standing to challenge President Obama's 2012 recess appointments to the NLRB.  The ruling means that this challenge to the recess appointments is dismissed.  We posted on another challenge, in the D.C. District, with links to other posts on those recess appointments, here.

The Seventh Circuit case arose out of a dispute over unions' rule that required non-union employees to file an annual objection to opt out of paying dues for the unions' non-collective-bargaining activities.  (Non-union members that are part of a union's collective bargaining unit can be charged dues for a union's collective bargaining, but they cannot be required to pay dues for non-collective-bargaining activities, like political activities.)  Non-members filed unfair labor practice charges against the unions, arguing that the annual renewal requirement violated the unions' duty of fair representation by placing an undue burden on objectors.  They sought an order striking the policies and a refund for non-members who at one time objected but failed to renew their objections.  The petitioners did not seek a refund for themselves, because they renewed their objections every year.

The NLRB granted the order striking the annual renewal requirement, but denied the refund for other non-members.

While the case was pending at the NLRB (on the petitioners' motion for reconsideration), on January 4, 2012, President Obama made three recess appointments to the Board, without which the Board would have lacked a quorum.  The NLRB later denied the petitioners' motion for reconsideration.

The petitioners argued that President Obama's appointments were invalid, and therefore that the NLRB's action on reconsideration was invalid.  They said that the Recess Appointments Clause allowed the President to make recess appointments only during intersessions of Congress (any recess between the two annual sessions of Congress, generally starting in December and ending on January 3, when the next session starts), not intrasessions of Congress (any recess during an annual session of Congress).  They also said that the Senate didn't consider itself in recess when President Obama made the appointments.  (It was in pro forma sessions.)

The Seventh Circuit dismissed the case for lack of standing and didn't reach the merits.  The court ruled that the plaintiffs already got all the relief they asked for and all they qualified for--that they suffered no injuries from NLRB decisions that could be remedied on appeal.  In particular, the court said that the NLRB already struck the annual renewal requirement, and that the petitioners didn't qualify for a refund because they renewed their objections annually and didn't pay the non-collective-bargaining assessment.

The court also ruled that the plaintiffs didn't have standing to seek postage fees they paid for their annual objection renewals, because they didn't raise this claim at the NLRB.

SDS