Teamsters local disputes ‘recess’ appointments to NLRB

Patrick Howley Political Reporter
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An Oklahoma local of the Teamsters Union is disputing recess appointments to the National Labor Relations Board (NLRB), charging that recess appointments were made while the U.S. Senate was not in recess, according to legal documents obtained by The Daily Caller.

“The union disputes that the board is properly and sufficiently constituted, as ‘recess’ appointments (to NLRB) were made when there was no recess,” according to a Dec. 12, 2012 affidavit signed by Teamsters Local 523 President Gary Ketchum.

“As far as I know, that was something that was decided to be accurate,” Ketchum told TheDC, referring to the improper recess appointments.

A “recess appointment” refers to the president’s appointment of a senior federal official made while the U.S. Senate is in recess.

But the labor leader does not believe President Barrack Obama was responsible for the disputed appointments.

“It happened before President Obama, from my understanding,” Ketchum told TheDC. “It would have had to have been the second Bush.” Ketchum declined to elaborate further.

Seven of former President George W. Bush’s nine NLRB appointees were recess-appointed, but no reports have yet demonstrated that Bush made any improper recess appointments.

The U.S. Court of Appeals for the Seventh Circuit declined Wednesday to rule on whether Obama had the authority to make three recess appointments to the NLRB in January 2012, when the Senate was not officially in recess.

But the NLRB decision that prompted the local’s complaint occurred prior to January 2012.

Teamsters Local 523 is disputing a 2011 decision by a three-member NLRB panel that it violated the National Labor Relations Act by, in 2005, agreeing to place Oklahoma delivery driver Kirk Rammage at the bottom of his company’s seniority list because Rammage did not belong to the union.

Teamsters Local 523 claims that the three-member NLRB panel was not properly constituted and thus may not act. The case is currently before the U.S. Supreme Court.

Rammage was a Ponca City, Okla.-based delivery driver for Interstate Bakeries, which owns Wonder/Hostess Bakery and the bakery brand Dolly Madison.

Though Teamsters Local 523 was the exclusive representative for the Wonder/Hostess Bakery bargaining unit in addition to separate bargaining units in some Dolly Madison facilities, Rammage did not belong to the union.

In November 2005, Interstate Bakeries and Teamsters Local 523 agreed to merge the Dolly Madison employees into the Wonder/Hostess Bakery unit.

“The guy worked at a company that did not have a collective bargaining agreement. This company was bought by a union company, and he didn’t want to belong to the union,” Ketchum told TheDC.

As part of the merger, Rammage was placed at the bottom of the seniority list for the merged unit, while other Dolly Madison employees previously represented by Teamsters Local 523 were placed higher than Rammage on the seniority list.

Interstate Bakeries told Rammage that he lost his seniority because he was not represented by a union.

“All of a sudden he wants to be dovetailed in?” Ketchum told TheDC. “That’s what they’re trying to force now. They’re trying to say that his seniority should be pushed up based on his time with the company, ahead of those who were union workers. That’s wrong. His seniority should start back at the bottom.”

Due to his low seniority, Rammage was transferred from his Ponca City facility to a different facility approximately 70 miles from his home, forcing him to move.

On Sept. 25, 2008, NLRB decided that both Interstate Bakeries and Teamsters Local 523 unlawfully discriminated against Rammage by placing him at the bottom of the seniority list.

NLRB also ordered Interstate Bakeries and Teamsters Local 523 to compensate Rammage for any losses he suffered as a result of their discrimination, including his moving costs.

Teamsters Local 523 has since waged a fierce legal battle to overturn that decision.

The U.S. Court of Appeals for the Tenth Circuit affirmed the NLRB’s decision and enforced the NLRB’s order in 2009.

Teamsters Local 523 subsequently petitioned the U.S. Supreme Court, which remanded the case to the Tenth Circuit for reconsideration. The Tenth Circuit, in turn, remanded the case back to the NLRB.

On June 30, 2011, a three-member NLRB panel again ruled that Teamsters Local 523 “violated the [National Labor Relations Act] by agreeing to endtail Rammage … because he was not previously represented by the union.” The panel again ordered Interstate Bakeries and Teamsters Local 523 to compensate Rammage for his losses.

Teamsters Local 523 is now petitioning the Supreme Court to review the decision of the three-member NLRB panel, as well as a subsequent July 2012 decision by the Tenth Circuit Court to affirm it.

The union’s petition was docketed on Oct. 25, 2012.

An attorney for Rammage issued a compliance specification computing on Nov. 26 stating that Rammage is owed $47,337 in damages.

An attorney for Teamsters Local 523 prepared the affidavit, signed by Teamsters Local 523 President Ketchum and notarized Dec. 12, to dispute the computation.

Teamsters Local 523 listed twelve challenges to the NLRB and Tenth Circuit Court decisions in its affidavit. The reference to the unconstitutional recess appointments appears in the first challenge.

A hearing on the compliance specification is scheduled for Jan. 31, 2013.

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