Update on Recess Appointment Lawsuit


CDW Members:


Last week, CDW and its co-plaintiffs became the first groups to legally challenge President Obama’s unlawful recess appointments of Richard Griffin, Sharon Block and Terry Flynn to the NLRB.  Press coverage of the challenge can be found here and here.


The challenge arose as part of our existing suit against the NLRB’s unlawful and biased notice posting rule.  On Friday, we filed amotion in that suit to amend our complaint.  Specifically, we and our co-plaintiffs asked the court to allow us to add a count challenging the authority of the NLRB to implement or enforce the rule with only two members. Under the Supreme Court’s New Process Steel decision, the Board must have 3 members to perform certain duties.  Our motion alleges that the recess appointments to the Board are not constitutional and thus the Board only has two legitimate members.


While we await the court’s ruling on our motion in that suit, we also are gathering resources to mount a separate legal challenge to the unlawful NLRB recess appointees.  This multi-pronged strategy is our best chance defend against the unlawful recess appointments and force the President to work with the Senate and put in place a balanced Board that will undo the damage created by Craig Becker and his anti-worker, anti-business decisions and regulations.


The Board is certain to use procedural arguments to try to delay our challenge to the recess appointees. To help us overcome these hurdles, we need your help in identifying a company with a pending matter before the Board.  Please reach out to your members and have them contact us.


Also, as I said in our last email, we need your support now more than ever.  I have attached the 2012 invoice for your convenience.  Please contribute what you can—any and all contributions are appreciated.  


Thanks, and as always, please contact me with any questions or concerns





Geoff Burr

Vice President, Federal Affairs

Associated Builders & Contractors, Inc.