Supreme Court Nixes Obama NLRB Recess Appointments, but Justifies Authority

justice-stephen-breyerThe National Labor Relations Board has been a model of instability these last half-dozen years. And the drama, though temporarily resolved last July, won’t likely end soon. Last Thursday, June 26, the Supreme Court unanimously ruled in Noel Canning v. NLRB that President Obama exceeded his authority in making three “recess appointments” to the NLRB on January 4, 2012 during a Senate break which, in the eyes of the Court, did not qualify as a recess. “The Senate is in session when it says it is,” wrote Justice Stephen Breyer (in photo). Yet the ruling was not a full defeat for Obama. By 5-4, the four liberals on the Court, joined by Justice Anthony Kennedy, also ruled against the near-elimination of presidential recess authority and thus undercut a circuit court ruling in January 2013. The invalidation of the appointments likely will trigger full reviews by NLRB of a number of …

NLRB Revives ‘Ambush Election’ Rule to Thwart Opposition to Union Campaigns

nlrb-logoA fair election campaign operates on the principle of a “level playing field” – while neither side is guaranteed victory, each should have an equal opportunity to state its case. The National Labor Relations Board has an unusual interpretation. On February 5, the NLRB reissued a rule that would curtail the ability of nonunion employers and employees to oppose union organizing drives. This ‘quickie’ or ‘ambush’ election rule, is a near rewrite of its 2011 rule change that briefly made it onto the books before being struck down on procedural grounds by a federal court in May 2012. Here, as before, the allowable time frame for opponents of a union drive to express their views would be reduced from 42 days to as few as 10 days. Union officials say the regulation promotes fairness. Yet the effect, and one suspects the intent, would be an erosion of freedom of speech …

NLRB-Mexico Agreement Undermines U.S. Rule of Law, Sovereignty

Obama discussing U.S.-Mexico partnershipA foreign power, in theory, has no authority to dictate another nation’s domestic policy. But don’t remind the National Labor Relations Board. Late in July the NLRB and Mexico’s Foreign Ministry signed a letter of cooperative agreement to promote the rights of Mexican workers on U.S. soil, regardless of their legal status. The pact commits the board to work with Mexican consulates in notifying that country’s workers in the U.S. of their rights and to investigate employer violations of labor law against their workers here. NLRB Acting General Counsel Lafe Solomon believes the agreement will “promote a broader awareness within the Mexican community of the rights and responsibilities of employees and employers.” This statement appears at odds with the board’s mission. Worse, it exhibits an extreme political naivete. 

International cooperative agreements, for better or worse, are a fact of contemporary life. The United Nations is a set of international agreements. So are the …

Senate Approves Five Obama NLRB Nominees; Creates 3-2 Pro-Union Majority

Harry ReidThe National Labor Relations Board now will have something it hasn’t had in a decade: five full-term members. Just one hour ago, the full Senate approved all five nominees to the board following a deal two weeks ago to break a logjam over two recess appointments. And it’s Republicans who appear to have been  taken. On July 16, President Obama had named Democrats Nancy Schiffer and Kent Hirozawa to slots vacated by Sharon Block and Richard Griffin, the result of a federal appeals court ruling this past January. Schiffer until last year served as AFL-CIO associate general counsel; Hirozawa is chief counsel to current NLRB Chairman Mark Pearce. These two were on top of three other persons, including Pearce, named by Obama in May. Then, on July 24, a Senate panel approved all five nominees. And just now, Schiffer and Hirozawa each were approved by a 54-44 margin; Pearce by 59-38; and two Republicans by voice vote. That all this occurred with such speed is a testament, most of all, to the wiles …

Senate Labor Committee Approves Five NLRB Nominees; Old Issues Remain

nlrb-1The National Labor Relations Board, strictly speaking, should have shut down nearly five months ago. But it has kept on going anyway. And even if President Obama’s slate of five nominees takes office, the issues surrounding its legal limbo almost certainly will continue onward to the Supreme Court.  On May 22, the Senate Labor Committee approved all five and sent their names in one package for a full floor Senate vote.  In February the president had re-nominated two members, Sharon Block and Richard Griffin, both of whose recess appointments were declared unconstitutional on January 25 by a federal appeals court. And in April, Obama named three more persons to round out the five-member board – Harry Johnson, Philip Miscimarra and Mark Pearce. Sound complicated? It’s even more so in light of a new bill passed by the House that could shut down the agency indefinitely.

The National Labor Relations Board …

NLRB Mandates Dues Check-Offs Even After Union Contract Expires

money photoThe National Labor Relations Board may be inoperative at present. Yet one of its rulings last month, unless undone, will curtail a longstanding right of employers and individual workers. On December 12, in WKYC-TV Inc., the NLRB ruled 3-1 that an employer must continue to collect dues from union members via automatic “checkoff” even after the collective bargaining agreement expires. The ruling effectively overturns the board’s Bethlehem Steel decision of 1962, which ruled against forced dues check-offs following contract expiration. It’s another case of President Obama’s appointees to the normally five-member body favoring forced unionism. The ruling, for now, isn’t affected by last Friday’s federal appeals court ruling voiding Obama’s recess appointments to the board in January 2012. But even with a welcome revisit, the outcome is likely to be the same.

In labor-management relations, the term “dues checkoff” refers to a common method of collection of …

Appeals Court Strikes Down Obama NLRB Recess Appointments

mark-gaston-pearceWhen is a presidential recess appointment less than an appointment? It would seem when Congress isn’t in recess. This Friday morning, January 25, a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia unanimously invalidated President Obama’s three appointments – Sharon Block, Richard Griffin and Terence Flynn – to the National Labor Relations Board (NLRB) of January 4, 2012. The Obama administration is expected to appeal the case, known as Noel Canning v. NLRB, to the U.S. Supreme Court. As Flynn stepped down last summer and another member left in December, the normally five-member NLRB now has only one legitimate member, Mark Pearce (in photo). Things could stay chaotic for a long time. For if the Supreme Court affirms the ruling, such action could void scores of board rulings over the past year.

National Legal and Policy Center last January and again last December

Court Hears Challenge to Obama NLRB Recess Appointments

NLRB logoThe National Labor Relations Board (NLRB), normally with five members, now has three. And not long from now, it may have just one. President Obama’s apparent desire to circumvent Senate intent is part of the problem. On Wednesday, December 5, a three-judge panel for the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments in a case concerning Obama’s filling of three vacant NLRB slots nearly a year ago. The case, Noel Canning v. NLRB, originated in a complaint filed by a Washington State business that the president had usurped the Senate’s constitutional powers of appointment because lawmakers were not in recess. And since these were not actual recess appointments, the president lacked the authority to make them. The eventual outcome will have implications for the board’s ability to operate over the long term. 

Union Corruption Update back in January described the circumstances surrounding …

Federal Court Blocks New NLRB ‘Quickie Election’ Rule

nlrb-logoLabor officials long have sought to severely limit the ability of employers to mount a challenge to organizing campaigns. Recently, that quest was fulfilled – for two weeks. On May 14, the U.S. District Court for the District of Columbia struck down the final “quickie” or “ambush” election rule issued by the National Labor Relations Board (NLRB). This regulation, which had gone into effect on April 30, shortened the normal allowable duration between the filing of an election petition and the holding of a vote from 42 days to as few as 10 days. U.S. District Judge James Boasberg, on procedural grounds, held that the rule was developed by only two board members, and thus lacked a necessary quorum. Suspending the regulation indefinitely, Boasberg declared: “Representative elections will have to continue under the old procedures.”

Union Corruption Update twice examined this issue at length in 2011. Last June 22, and …

NLRB Approves Pro-Union “Ambush Election” Final Rule

nlrb-logoIf the Democratic-majority National Labor Relations Board (NLRB) under the Obama administration has become a de facto union law firm, then its proposed rule mandating “fast-track” or “ambush” elections loomed as its crowning achievement. Two days ago, on Tuesday, December 20, that proposal became final. By a 2-to-1 margin, the board approved a regulation it had unveiled this June ostensibly to speed up union representation election campaigns and avoid frivolous litigation. The ulterior motive, however, appears to be to prevent employers from mounting an effective challenge to union organizing. The rule is set to take effect on April 30. But opponents aren’t wasting time. The House of Representatives on November 30 passed a bill to undo the rule. And the U.S. Chamber of Commerce, only hours after the board vote, filed suit in federal court to block its enforcement.

National Legal and Policy Center covered this issue in June. It …

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