Porters and handymen who have been locked out of their jobs at a Brooklyn housing complex have found themselves at the center of Republicans’ charge that President Barack Obama’s recess appointments to the National Labor Relations Board are unconstitutional.

Paul Clement, who served for three years as solicitor general under President George W. Bush, has filed a motion in federal court in Brooklyn asking a judge to dismiss the board’s request for an injunction that would force the owners of Flatbush Gardens to bring the workers back at their old salaries and benefits.

“The National Labor Relations Board lacks the statutorily required quorum of three members necessary to authorize the filing of the petition,” the motion argues.

The move comes a week after the labor board filed a petition in federal court seeking an injunction to end the 15-month lockout at Flatbush Gardens, a 59-building complex in the East Flatbush neighborhood. The labor board was scheduled to go into court Thursday afternoon to argue in favor of the injunction.

The lockout at the sprawling complex, which is home to 10,000 New Yorkers, began in November 2010, after the workers, who are members of 32BJ SEIU, refused to accept a wage cut of more than 30% and reductions to benefits that would have left most of them without health care coverage.

In its request for the injunction, the board said that owner Renaissance Equity illegally locked out the workers, improperly subcontracted out work that was supposed to be part of a unionized bargaining unit, and failed to negotiate in good faith with the union. It asked that a judge order the company to take back the workers and bargain in good faith.

The move to seek a so-called 10(j) injunction was the first such injunction sought since President Barack Obama made three appointments to the board last month while the Senate was in recess.

Republicans had threatened to challenge the constitutionality of the appointments, but have since backed off. However, two pro-business groups filed legal challenges, and Renaissance is now following suit.

That Renaissance, which is controlled by real estate investor David Bistricer, got Clement to file a pro hac vice motion on its behalf is a sign that the case has taken on significance beyond the 70 workers in Brooklyn.

Republicans, angry about a case the board brought against Boeing and the board’s new rules to speed up union elections, had vowed not to confirm Obama appointees, which would have disabled the board.

Clement argues in the motion that the Senate was not technically in recess when the president appointed Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and National Labor Relations Board counsel Terence Flynn to the board last month. The board was down to two members, not enough for a quorum.

“The problem here is that the president’s attempted appointment of Block and Messrs. Flynn and Griffin occurred when the Senate was in session, and without the Senate’s advice or consent,” the motion argues.

Clement did not respond to a request for additional comment. A spokeswoman for the labor board did not have an immediate comment. A lawyer for Bistricer did not return a call.

A spokesman for 32BJ said that the lockout has wreaked havoc on its members’ lives and that by taking this case to court, the labor board is affirming the union’s view that the Flatbush Gardens lockout of workers is unlawful.

Ruthann Robson, a professor of law at the City University of New York Law School, said the decision would be a very technical one about whether the Senate was in recess.

“The clear text of the Constitution says there should be a recess appointment,” she said. “Now the question is, ‘Can the Senate still be in session when there’s one person who’s planted there to come in and read one thing a day so it’s never in recess?’ The point of that is to circumvent the recess requirements.”

In a memo released last month, the U.S. Department of Justice’s Office of Legal Counsel wrote that Obama was justified in making the appointments.

“The convening of periodic pro forma sessions in which no business is to be conducted does not have the legal effect of interrupting an intrasession recess,” the memo says. “The president therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function.”

Filed by Daniel Massey of Crain’s New York Business, a sister publication of Workforce Management. To comment, email editors@workforce.com.


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