An appeals court says his recess appointments are unconstitutional.
President Obama has shown increasing contempt for the constitutional limits on his power, and the courts are finally awakening to the news. A unanimous panel of the D.C. Circuit Court of Appeals ruled on Friday that the President's non-recess recess appointments are illegal and an abuse of executive power.
On January 4, 2012, Mr. Obama bypassed the Senate's advice and consent power by naming three new members of the National Labor Relations Board and appointing Richard Cordray to run the Consumer Financial Protection Bureau. Other Presidents have made recess appointments and we've supported that executive authority.
But here's the Obama kicker: He consciously made those "recess" appointments when the Senate wasn't in recess but was conducting pro-forma sessions precisely so Mr. Obama couldn't make a recess appointment. No President to our knowledge had ever tried that one, no doubt because it means the executive can decide on his own when a co-equal branch of government is in session.
In Noel Canning v. NLRB, a Washington state Pepsi bottler challenged a board decision on grounds that the recess appointments were invalid and that the NLRB thus lacked the three-member quorum required to conduct business. The D.C. Circuit agreed, while whistling a 98 mile-per-hour, chin-high fastball past the White House about the separation of powers.
Sunday, January 27, 2013
Obama's Abuse of Power
Tuesday, December 20, 2011
NLRB Approves Changes to Union Election Rules, 2 to 1
by Seth Borden
On Wednesday, the NLRB voted 2-to-1 to approve a resolution to amend the rules and regulations related to its election process. Chairman Mark Pearce and Member Craig Becker voted in favor of the changes and Member Brian Hayes voted against them. The amendments that passed were trimmed from a more comprehensive set of proposed changes published in the Federal Register on June 22, 2011. The approved changes are intended to reduce litigation in election cases and will also significantly shorten the time between any pre-election hearing and the election date.
The approved changes will include:
a) giving hearing officers greater discretion to limit the evidence presented at pre-election hearings to evidence that is “relevant to a genuine issue of fact material to whether a question of representation exists”
b) giving hearing officers the discretion to deny requests by parties to submit post-hearing briefs
c) denying the parties the right to file requests for review with the Board challenging the viability of a regional director’s decision and direction of election until after the election
d) eliminating the 25 day period between the issuance of a decision and direction of election by a regional director and the holding of an election
e) clarifying the rules regarding a party’s ability to seek special permission to appeal a hearing officer ruling to the Board
f) giving the Board the discretion to refuse to review a regional director’s resolution of post-election disputes
The Board did not release the final rules that will amend or replace the existing language in the regulations. It also did not indicate when the new rules would become effective. Unless the language is already written and the date is already set, it is reasonable to believe both will be impacted when Member Becker’s recess appointment expires at the end of this month, leaving just two members on the Board.
At roughly the same time as the Board action, Congress passed a bill designed to undo parts of the proposed rule changes. John Kline's (R-MN) "Workforce Democracy and Fairness Act" (H.R. 3094) passed by a vote of 235-188. The bill would guarantee that no representation election is held within 35 days after the filing of a petition, provide for a two-week waiting period before a hearing could be held, and ensure certain preliminary appeal rights.
Obama Names Two New NLRB Nominees
by Ilyse Schuman
President Obama has announced that he intends to nominate Sharon Block (D) and Richard Griffin (D) to fill two vacancies on the National Labor Relations Board. When Member Craig Becker’s recess appointment expires at the end of this year, the Board will be left with only two members, Chairman Mark Gaston Pearce (D) and Member Brian Hayes (R). As the Supreme Court decided in last year’s New Process Steel decision, the Board must operate with at least three members to exercise its full authority. In January of 2011, Obama nominated Terence Flynn (R) to fill one of the vacant slots on the five-member Board, but the Senate has not yet acted on his nomination. It is expected that the Senate will similarly take no action on the latest nominees. The possibility of the President seating Block and Griffin by recess appointment is also low, as the House will likely take steps to block his ability to do so.
According to information published by the White House, Block has worked as an attorney in both the private and public sectors. She currently serves as the Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. Her other positions have included Senior Labor and Employment Counsel for the Senate Committee on Health, Education, Labor and Pensions (HELP), where she worked for the late Senator Edward M. Kennedy, and senior attorney to former NLRB Chairman Robert Battista.
Griffin is a long-term attorney for the International Union of Operating Engineers (IUOE). He is currently the union’s General Counsel, and has served on the board of directors for the AFL-CIO Lawyers Coordinating Committee for the past 17 years. Griffin also has worked as a counsel to NLRB Board Members.
Saturday, December 17, 2011
Review Officer Opposes Amalgamated Union
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Judge Berman requested Bisceglie to respond to Walsh's letter and has put the matter on the agenda for the scheduled December 20th conference with the Court.
The Dockbuilders are seeking to break away from the UBC and form a new carpenter union affiliate with the International Union of Painters and Allied Trades (IUPAT) and has filed the necessary petitions with the NLRB to conduct a representation election.
In his response, Bisceglie among other things wrote, "the Court should not interfere in any way with the proceedings before the National Labor Relations Board, which is the body with jurisdiction to resolve representation proceedings."
Monday, August 1, 2011
Ex-union member fights hefty Carpenters fine
Union members better think twice before working for a non-union company — it could cost them.
The Chicago Regional Council of Carpenters imposed a $300,900 fine on a former union member who crossed a picket line and went to work for a non-signatory contractor while he was still part of the union, court documents show.
The individual, Nathaniel Musser, who was a member of Waukegan-based Local 250, has filed charges of unfair labor practices against the union with the National Labor Relations Board. A hearing is set for mid-August.
Musser, described as a young man, could not find employment through the union, said his lawyer, Stanley Niew. He eventually found a job through a non-union company that has since gone out of business and performed work on various dates in April and May of 2009.
Sunday, July 31, 2011
Ninth Circuit Endorses NLRB General Counsel's Procedural Authority to Seek 10(j) Injunctive Relief
Among the more significant initiatives that NLRB Acting General Counsel Lafe Solomon has pressed for is the implementation of a program to streamline the process for seeking Section 10(j) injunctive relief ‑ and to expand the substantive scope of when to pursue such serious relief. Section 10(j) of the National Labor Relations Act (NLRA) permits the NLRB to seek a federal court injunction to proscribe unions and employers from committing unfair labor practices – the intended purpose being to use such drastic court-sought remedies where needed to maintain the status quo while a matter is pending before the Board.
While Solomon focuses on the Section 10(j) program as a “top priority,” some have questioned whether the Board’s General Counsel even possesses the statutory power under the NLRA to approve independently such direct court action without the NLRB itself becoming involved.
Sunday, July 10, 2011
The National Labor Relations Act
The principal labor law in the United States is the National Labor Relations Act (NLRA). Before its passage in 1935, employers were free to spy on, interrogate, discipline, fire, and blacklist union members. Nonetheless, during the Great Depression workers took over factories, engaged in citywide general strikes, and battled police and private security forces. Some historians believe that Congress adopted the NLRA to steer labor struggles away from potentially revolutionary confrontations.
The NLRA declares collective bargaining as an official policy of the United States.1 Employers are forbidden from discriminating against workers who join unions, exercise leadership, or engage in strikes.
The NLRA spurred organizing in the automobile, steel, electrical, meatpacking, rubber, and other industries. By 1945, union contracts covered a third of the private sector workforce.
In 1945 and 1946, a great wave of strikes swept the country. In response, business interests petitioned Congress to amend the NLRA. The Taft-Hartley Act of 1947 prohibited solidarity strikes, closed shops, and secondary picketing. The Landrum-Griffin Act of 1959 imposed further restrictions.
