The U.S. Court of Appeals for the District of Columbia today ordered the National Labor Relations Board to respond to a petition by a pro-business group that it suspend any further action in a Rhode Island case. The same court had earlier ruled that two of the three current board members were appointed unconstitutionally. Should the court grant the petition, it could force the NLRB to cease all activity.

“We are not asking the court to shut down the Board, but it may have that effect. If the court shuts down the NLRB in this case, why not another other case? This will open the door for challenges in the other cases that have the potential to be invalidated by the court’s decision last month,” said Anthony Riedel, spokesman for the National Right To Work Legal Defense Foundation, which filed the petition.

NLRB spokeswoman Nancy Cleeland told Examiner the board does not comment on pending litigation.

The NRTW’s action followed a decision last month by the court which said the White House had overreached when it recess appointed three people to the five-member board in January 2012. Republican lawmakers had argued the Senate wasn’t actually in recess at the time. The court’s decision effectively said that the appointments of boardmembers  Sharon Block and Richard Griffin (the third appointee, Terrence Flynn, had since stepped down) were null and void.
That threw into doubt every decision of the board since the appointments. Without Block and Griffin, it would have lacked a quorum to act.

The NLRB said the administration would appeal the case and in the meantime would continue to do its duties as if the court’s ruling didn’t happen.

Earlier this month, the NRTW filed a petition on behalf of Jeanette Geary, a Rhode Island nurse. The board had made an initial ruling against her in a 2012 case involving whether her union could require her to pay for their political lobbying activities. The NLRB had not issued a final ruling in the case though. The NRTW asked the court to prohibit the NLRB from any further actions in the case until a valid quorum is seated.

“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,” said NRTW president Mark Mix, in a February 11 press release.

The question of the constitutionality of the board’s recess appointees is widely expected to be heard by the Supreme Court. It could have far-reaching implications given the executive branch’s expansive use of recess appointments, especially under the George W. Bush and Obama administrations. Numerous federal actions could be retroactively voided.