LaborPains.org

Organized labor just had a tough week. First, it had to endure the report of devastating membership numbers that show that only 11.3 percent of the workforce is stuck in a union. Then, the pro-union National Labor Relations Board (NLRB) and the President who blindly supports labor had to face the reality that the Board was illegally constituted, and its recent radical decisions may soon be no more.

So after comically spinning about the numbers and ignoring the reality that the NLRB has questionable authority at best, it’s clearer than ever that labor needs a backup plan.

Josh Eidelson, a union organizer-journalist, writes in the American Prospect that the next generation of the so-called labor movement will be in the form of “alt-labor.” Eidelson devotes much of his article to the UNITE HERE-linked Restaurant Opportunities Center (ROC), a radical labor group that isn’t legally a union. Eidelson would know best: According to his blog, he was an organizer for UNITE HERE for five years, so undoubtedly, ROC is close to his heart. Groups like ROC are part of labor’s rebranding, trying to make itself more palatable to the employee of the 21^st century (or even the latter half of the 20^th, for that matter).

The problem is that ROC and others like it provide all of the problems of regular unions and none of the benefits. “Alt-labor” groups are convinced that they have managed to find the sweet spot that allows them to ignore the hard work posed by running a real union and to focus on well-publicized harassment and shakedowns. In an article published in Engage, a legal journal, this strategy is explained:

But Eidelson says that this is what labor will look like in the foreseeable future, and the AFL-CIO and Change to Win have both endorsed the worker center “movements.”

Michigan Gov. Rick Snyder puts right-to-work law before high court, making other challenges moot

Fallout from the NLRB recess appointments decision continues:

Sen. Alexander: Obama NLRB Appointees Should Resign Immediately

Wall Street Journal Editorial: NLRB Disregards D.C. Circuit Ruling

CUF in the news:

Pittsburgh Tribune-Review: Labor’s backward movement by Richard Berman

In President Obama’s recently extended quest to duly reward organized labor for helping him take the White House, he took a serious risk. When he couldn’t deliver “card check” with EFCA, Obama opted to illegally appoint three new members to the National Labor Relations Board (NLRB). The risk that Obama took was not only that his picks would be thrown out, but that the President’s recess appointment power would be eviscerated.

The Noel Canning decision coming out of the D.C. Circuit Court of Appeals does exactly that, calling into question the scope of the recess appointment power granted to the President in Article II, Section 2 of the U.S. Constitution. The Constitution states:

The President shall have power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. [emphasis added]

In Noel Canning, the D.C. Circuit invalidated the appointments to the NLRB for two reasons. The first was on the grounds that “the Recess” is not like all other recesses of the Senate, but rather only the recess that occurs between sessions of Congress, known as the intersession recess. The Senate leaves for recess at other points in the year, often revolving around holidays and the summer. Each Congress usually meets for two sessions over the two-year term which — in the modern era — typically begin and end based on the calendar year.  In this case, however, the Senate was not in recess, deciding to instead conduct pro forma sessions that continued the first session of the 112th Congress until January 3, 2012. On that same day, it started the second session of that term. The appointments were not made until the next day, after the second session had commenced.

Second, the court continued its analysis into the language of Article 2 to determine what “happen” means. In the past, courts had interpreted “happen” to mean “exist” and therefore, it would allow a president to make an appointment to a vacant position that became open prior to the recess. But the DC Circuit ruled that “happen” is more accurately interpreted to mean “arise,” meaning that the vacancy must occur during the intersession recess. In this case, there was no intersession recess on January 3, only the beginning of the second session of the 112th Congress. Even if a recess in between the sessions occurred, the only valid appointee would be Sharon Block, as she replaced Craig Becker. Becker’s term expired at the end of the first session of the 112^th Congress, as he was a “recess” appointment in March 2010 (more on that in a moment). Richard Griffin and Terrence Flynn replaced members whose terms had ended in 2011.

The recess appointment power of the President, until Friday, had suffered few, if any, setbacks. But President Obama’s action was a unique one, due mostly to a strange new way of starting and ending sessions of Congress, which began in 2007, when Democrats controlled the Congress and George W. Bush was president. Senate Majority Leader Harry Reid (D-NV) ordered that the Senate never actually enter a recess by conducting pro forma sessions. Article I, Section 5, Clause 4 of the Constitution states:

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. [emphasis added]

Reid, known for his schemes, came up with a plan to block Bush from making recess appointments. By holding a session every three days, even if for mere seconds, Democrats would be able to block any of Bush’s recess appointments. The new Senate calendar would involve the end of the old session and the start of the new on the same day, with no recess in between. We’ll call this the “Reid Calendar.” The Reid Calendar was employed in 2007 and 2008 for that purpose; Bush respected the Constitution and made no appointments.

Flash forward to 2012, with a Republican-controlled House of Representatives that, under Article I, Section 5, must approve the Senate’s calendar. Not surprisingly, Republicans used the Reid calendar. But unlike Bush, Obama opted to ignore the pro forma sessions and make the appointments to the NLRB anyway. Therein lies the fatal flaw that has now put the entire recess appointment practice under scrutiny.

How far back will this decision extend? Right now, that’s hard to say. But at least consider Craig Becker’s appointment, which occurred on March 27, 2010. First, this was an intrasession recess of the second session of Congress. Under Noel Canning, this would be invalid, because it is just “a recess” and not “the Recess” that occurs between sessions. Second, Becker’s seat had been open since 2008, meaning that it did not “happen” in the recess.

There could be a saving grace for Becker, however. The “de facto officer doctrine,” established in the 1995 Supreme Court case Ryder v. United States “confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.” But there is also one exception, according to the Court: “We think that one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case is entitled to a decision on the merits of the question and whatever relief may be appropriate if a violation indeed occurred.”

All of this remains in the hypothetical realm until the Supreme Court takes on the case, which is very likely. Because other federal courts have ruled differently on the president’s recess appointment power, this creates a circuit split, meaning that there is different law in different parts of the country.

We knew that President Obama was willing to turn a blind eye to forced association for the sake of supporting labor on blocking right-to-work. But the NLRB appointments may prove to be his most extreme attempt at payback yet. Former Attorney General Ed Meese and Todd Gaziano of the Heritage Foundation deemed the appointments a ”constitutional abuse of high order.” The D.C. Circuit agreed. It may be only a matter of months before the Supreme Court agrees.

How much does President Obama think he owes organized labor? Enough to forever change the American presidency.

Steven Greenhouse of the New York Times gives organized labor an outlet to deny that the emperor has no clothes.  In his follow-up piece on the unquestionably devastating drop in union membership last year, Greenhouse highlights labor’s gains in California and among Latinos. But even with this outlet, Greenhouse is quite fair in highlighting the collapse of labor in the Midwest and refuting the claim that union households would reluctantly respond to the survey by Bureau of Labor Statistics.

With the news that labor unions have shrunk to their lowest level in decades, many media outlets looked to the Center for Union Facts to weigh in.

Reuters: U.S. union membership falls to lowest percentage in 76 years

The activist group Center for Union Facts, which is critical of the labor movement, said unions have made salary and benefit demands that have hurt the budgets of corporations and the public sector.

Detroit Free Press: Unions shrink in size, clout to 1930s membership levels, data show

“No one is surprised by the numbers,” said J. Justin Wilson, managing director of Center for Union Facts in Washington, D.C., an interest group that criticizes unions. “It has been a slow and precipitous decline since 1979.”

…

In one respect, “unions have been too good at their job,” Wilson said. They fought for safety, anti-discrimination and other rights that have since become protected by the federal government.

But on the negative side, “they have become non-responsive to their members,” said Wilson, who receives many calls a day from union members who feel leadership is not looking out for their interests.

Washington Examiner: Unionization rates fell to 11.3 percent in 2012

Richard Berman, executive director of the business-backed Center for Union Facts, said in a statement: “The continued decline of union membership, even during four years of a labor-friendly administration, is a sign that organized labor is no longer serving the best interests of its members.”

Kansas City Star: Dwindling union ranks shrank further in 2012, new data show

But most people don’t want to be union members, countered J. Justin Wilson, managing director of the Center for Union Facts, an organization funded by corporations, foundations and individuals.

That’s partly because today’s workers “are expressing a greater interest in autonomy and ambition on the job and want the ability to negotiate for themselves,” Wilson said.

It’s also because much of what unions fought for in the past “has now been codified into federal law,” Wilson said, pointing to standards required by the Occupational Safety and Health Administration and wage and hour laws.

Furthermore, federal health legislation sets health benefits standards for employers, minimizing the need for collective bargaining in that respect, he said.

“So the bargaining power of unions comes down to wages, and companies are saying it’s just not feasible to continue to pay more,” Wilson said, citing increased “givebacks” — wage concessions — by unions.

Press-Telegram (Long Beach, CA): California bucks nationwide trend of falling union membership

California is a state that is dominated by labor-friendly politicians, said J. Justin Wilson, managing director of the Center for Union Facts, an anti-union group in Washington, D.C.

“The private unions in particular spend a great deal of money and have proven they will continue to do that, and in turn they receive sweetheart deals and have a seat at the table – this gives unions power and keeps them strong, together,” he said.

Although former speaker of the Connecticut House of Representatives Christopher Donovan came up short in his run for Congress, the Hartford Courant reports that he’s being encouraged to campaign to be the next head of the state’s AFL-CIO. Donovan has a great prerequisite: he’s already involved in a serious scandal.

A few months before the Democratic primary, seven people were indicted by a federal grand jury for conspiracy in directing illegal campaign contributions to Donovan. Among those were Donovan’s campaign manager and long-time aide, his finance director, and a union leader. According to the Wall Street Journal:

Prosecutors also disclosed that Ray Soucy, a former union official and a key figure in the probe, pleaded guilty Tuesday to conspiracy charges in the scheme, which supplied straw donors with cash so they could write checks to Mr. Donovan’s campaign committee.

In exchange, according to court documents, Mr. Soucy assured the co-conspirators that Mr. Donovan would kill legislation to close a loophole allowing roll-your-own tobacco shops to avoid collecting cigarette taxes. The bill didn’t come up for a vote in the state Legislature.

Since his defeat, not much has been heard from Donovan. And although he has not been accused of wrongdoing, the swirling scandal around him is par for the course for union officials.

In Minnesota, a father-son duo has been accused by the International Teamsters of embezzlement, bank fraud, racketeering, and other financial crimes. Bradley Slawson Sr. and Bradley Slawson Jr. of Local 120 are currently on unpaid leave from the union. The pair is said to have received payments from a Teamsters-owned bar — payments adding up to $140,000 between the two of them. Another teamster, Todd Chester, helped to coordinate those payments from the bar and has also been charged. Chester, described in the Star Tribune as “a family friend of the Slawsons” and “the father of one of Slawson Sr.’s grandchildren,” also received a questionable finder’s fee of $90,000 for the construction of a new union hall. The Star Tribune reported in December that the Independent Review Board (IRB) report included an “unsettling allegation… that one of the bar managers wanted to hold a fundraiser for a ‘nonexistent fake sick baby’ and direct the funds instead to a bar the union owns in Fargo.” The bar, the Teamsters Club in Fargo, North Dakota, hosted a victory party for Democratic now-Senator Heidi Heitkamp.

The Slawsons claim that this is just a “witch hunt” because the family broke away from Jimmy Hoffa Jr. in 2010. But this isn’t the first time the Slawsons have been in the news for misconduct. In 2009, the Department of Labor conducted an audit of Local 120’s records under its Compliance Audit Program (CAP) of the Labor-Management Reporting and Disclosure Act (LMRDA) and found that Slawson Sr.’s chapter committed recordkeeping and reporting violations. In 2000, a press release from Overnite Transportation Co. reveals that Slawson Jr. pled guilty to disorderly conduct charges for his actions at a strike of the company. The release says:

Slawson was found in contempt of court on May 8 for his self-admitted threats and coercion in connection with unrefuted claims that he struck one Overnite driver with a picket sign and locked another Overnite driver in a trailer while the driver was attempting to make a delivery at a customer’s facility. Slawson was ordered to keep away from Over[ni]te property and that of the trucking company’s customers for the purpose of assisting the union in any labor action against Overnite. He was also ordered to pay $500 to compensate Overnite for attorneys’ fees and costs.

Not surprisingly, Junior was also a big fan of EFCA.

Labor should go no further than its own backyard if it is looking to blame anyone for its declining numbers. Rampant crime and corruption are just line-items on the long list of reasons why organized labor slides deeper into irrelevancy.

A three-judge panel of the D.C. Circuit Court has ruled that the National Labor Relations Board (NLRB) does not have the required three-member quorum because President Obama’s appointments to the Board in January 2012 violated the Recess Appointments Clause.

The opinion in Noel Canning v. NLRB, written by Chief Judge Sentelle, states that the Board’s decision against Noel Canning in February of last year must be vacated. This opens the door for the invalidation of all of the Board’s 2012 and 2013 decisions.

The Board argued that the President had the power to appoint three members in January of last year, when the Senate was holding pro forma sessions. Noel Canning, along with the amicus curiae briefs, argued that this practice was invalid because the Senate did not recess during that time.

Sentelle stated “To adopt the Board’s proffered intrasession interpretation of ‘the Recess’ would wholly defeat the purpose of the Framers in  the  careful separation of powers structure reflected in the Appointments  Clause.”

You’d be hard pressed to miss the news that organized labor suffered one of its largest one-year losses in membership in years. While the AFL-CIO is out spinning, our executive director, Rick Berman, weighed in at the Washington Examiner:

The updated membership number is 11.3 percent of the total workforce—the lowest it’s been since the 1930s. In 34 states, union membership tumbled. Among those is Michigan, which has yet to feel the effect from becoming a right-to-work state.

Across the country, state governments are starting their legislative sessions and are filing bills that would reform labor law. Pennsylvania lawmakers will be mulling a package of reforms, including right-to-work. Colorado is doing the same. Even Kansas, already a right-to-work state, is looking at labor law changes: Its legislators are looking at a public sector union paycheck protection bill.