Labor board ruling challenged because of 2010 recess appointment

NEW YORK Wed Jan 30, 2013 7:51pm EST

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NEW YORK (Reuters) - A home builder has asked a federal appeals court to throw out a National Labor Relations Board ruling, citing Friday's decision by another appeals court that President Barack Obama violated the U.S. Constitution when he filled three board positions using recess appointments in January 2012.

The argument, made in a letter filed Tuesday by home builder D.R. Horton, Inc (DHI.N) with the 5th U.S. Circuit Court of Appeals in New Orleans, appears to be one of the first attempts to extend Friday's ruling from the District of Columbia circuit court to other recess appointments made prior to 2012.

The District of Columbia court said Friday that the Senate was not truly in recess in January 2012 when Obama named the three new members, a decision that could significantly limit the power of the president to sidestep Congress when pushing future federal nominees.

The letter from D.R. Horton, however, calls into question whether the decision could impact past appointments as well.

The company claims Obama's recess appointment of Craig Becker to the labor board in 2010 should also be considered invalid, relying on the D.C. circuit's reasoning.

Not counting Becker, the board had only two members, less than a quorum, when it issued a ruling on January 3, 2012, in the Horton case prohibiting companies from requiring their workers to waive their right to bring collective action, the company claimed.

Different circuit courts are not obligated to follow one another's rulings.

Nancy Cleeland, a spokeswoman for the board, declined to comment. Ron Chapman, a lawyer for D.R. Horton, did not immediately have a comment.

Other companies have already begun citing the D.C. circuit's decision in challenging NLRB rulings made after Obama's three appointments.

Entergy Mississippi, a unit of Entergy Corp (ETR.N), filed a brief Monday in the 5th circuit arguing in part that a NLRB ruling in August 2012 concerning whether its dispatchers are bargaining-unit workers should be invalidated because of the recess appointments.

The case is D.R. Horton Inc. v. NLRB, U.S. Court of Appeals for the Fifth Circuit, No. 12-60031.

(Reporting by Joseph Ax; Editing by Bob Burgdorfer)

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