LaborPains.org

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.

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.

New York City’s yellow school bus drivers are taking the concept of wanting what they can’t have to a whole new level.

The Amalgamated Transit Union (ATU) Local 1181 has authorized a strike that it says will begin on Wednesday morning. The ATU is demanding that the city include special employee protections in the competitive bidding that it recently opened up for 1,100 of the 7,700 school bus routes. These 1,100 routes serve 22,500 special needs children that attend the city’s public schools.

There’s just one problem: The city isn’t legally allowed to grant those employee protections. The New York Court of Appeals (the highest level court in the state) in 2011 said that the rules, known as Employee Protection Provisions (EPPs) are not permissible because they can harm the public when they are a required part of a competitive bidding process.

Despite the impossibility of meeting their demands, Local 1181 will be stranding most of the 152,000 New York City students that take the bus to school each morning. (Ironically, NY1 reports that buses for special needs students will still run during the strike.)

The NYC Department of Education (DOE) is legally barred from appeasing Local 1181. The battle over EPPs is an old one — one that was at the heart of the last school bus strike in 1979. As the Court of Appeals’ June 2011 decision explains, the city’s DOE moved to eliminate seniority practices in its bid solicitations, prompting the ATU to walk off the job for three months. In the wake of the strike, the DOE accepted EPPs. As the Court said, “the EPPs established a master seniority list, requiring contractors with the Board to give priority in hiring to employees on the list when such employees become unemployed because of reassignment of busing contracts.” When the DOE wanted to include EPPs in the competitive bidding for new Pre-K busing contracts, transportation vendors sued the DOE, saying that EPPs were anticompetitive and harmed the public.

The Court agreed, siding with the vendors over the DOE and Local 1181, which intervened in the case. Rejecting the claims that EPPs were similar to the permissible Project Labor Agreements (PLAs), the Court stated that the two were only comparable “in their status as atypical, patently restrictive, comprehensive pre-bid specifications and in their potential for anticompetitive consequences.”  The Court even noted that the DOE provided no examples of any other school districts in the country that included provisions akin to the EPPs.

It wouldn’t take a great leap of faith to see how EPPs and ATU Local 1181’s contracts have affected the cost of busing. At $1.1 billion for the entire contract, the cost comes to approximately $6,900 per student. Los Angeles estimates its per pupil cost at $3,100.

Consider that a 2-mile taxi ride from Union Square to Times Square—right through the heart of Midtown Manhattan—would cost roughly $4,600 for an entire school year. And that includes a generous 20 percent tip for the cabbie. If students paid the full fare for a subway or public bus trip each way to school, the cost would be only $810 per year.

Of course, Local 1181 knows all of this, and at the heart of this debate is the union’s distaste that the city dare to consider more cost-effective alternatives. When the city submitted the Pre-K busing contract for competitive bidding, the city saved $95 million over five years.

Instead of facing these realities, the 9,000 drivers and matrons of Local 1181 will likely strike tomorrow morning, all for the sake of preserving seniority rules the city can’t legally give them.

As members of Congress, state legislatures, and the President of the United States are sworn into office, we’re reminded of our American democratic ideals. Unfortunately, many union members don’t get the chance to celebrate democracy thanks to a unionization procedure known as “card check.”

Take Karen Cox and her coworkers at Americold Logistics, who are only the latest examples of how unions intend to end the secret ballot in labor organizing. In spring of 2012, she was given a card that she was told would be used for information purposes. She filled it out and returned it. But in June, she learned that she, along with at least 50 percent of her fellow coworkers, had signed and returned the cards that recognized a labor union.

Cox, who opposed the union, tried to collect petitions from co-workers to call for a secret ballot vote. But rather than let her have the same access rights as union organizers, Cox was stopped from doing so by Americold. She’s now being represented by National Right to Work Foundation in a complaint against the company filed with the National Labor Relations Board (NLRB).

“I think they did it that way as a way for the union to sneak in without opposition,” Cox told Sauk Valley Media. “Some people were mad about that, and all I want is a legit election.”

In 2011, Barbara Ivey shared her very similar story. A 21-year employee at Kaiser Permanente in Oregon, she was shocked that after only 13 days, a Service Employees International Union (SEIU) card check campaign successfully turned her workplace into a union shop. Ivey said that her coworkers felt pressure to sign the card.

Ivey began to collect signatures for a decertification election, which would allow the employees to vote on the unionization by secret ballot. Although these elections used to take place immediately after a card-check drive, a “safety valve” provision to ensure the card check collection was proper, the NLRB’s penchant for overturning precedent ended that protection. In Lamons Gasket, the NLRB did away with the immediate vote petition and instead required that more time elapse before the decertification vote could take place.

These women aren’t outliers. In fact, denying the secret ballot vote is policy for labor. That didn’t die with the EFCA. With UNITE HERE leading the way, several labor groups, notably the AFL-CIO, backed a boycott of Hyatt Hotels in July because the company refused to allow card check unionization at its hotels.

Just prior to the November election, Richard Trumka of the AFL-CIO told the Atlantic that labor will never give up on card check. “That’s within the next term,” he claimed.

Card check is no way to determine if an individual really wants to join a union. The process is fraught with potential problems—deception and intimidation chief among them, as shown in the workplaces of Cox and Ivey. Card check makes the vote public and puts employees in the difficult position of openly stating their position to a union organizer. The Employee Rights Act requires secret ballot elections for union certification votes in order to ensure that each individual employee can decide whether she wants to join a union without someone looking over her shoulder.

Chicago Teachers Union President Karen Lewis was a big hit at the Illinois Labor History Society. As the keynote speaker at the Society’s “Salute to Labor’s Historic Heroes from the History Makers of Today” event, Lewis recalled the labor days of yore by saying, “[W]e are in a moment where the wealth disparity in this country is very reminiscent of the robber baron ages. The labor leaders of that time, though, were ready to kill. They were. They were just–off with their heads. They were seriously talking about that.” Minor applause ensued, along with a few laughs. But Lewis, who’s already known for her jokes, thankfully cleared things up: “I don’t think we’re at that point.”

Whew.

Jon Ortiz at the Sacramento Bee’s State Worker blog reports that Assemblyman Roger Hernández has introduced a bill that would re-institute a state holiday on the second Monday of October, one of the two holidays that were eliminated in 2009 (Lincoln’s Birthday was the other).

Most people call this “Columbus Day,” but Hernandez’ bill renames the new holiday “Native American Day.” It would also be a paid holiday for state employees. California public employees already enjoy greater compensation than their counterparts in the private sector. Although the two holidays were replaced with two “professional development days” in 2010, Ortiz reports that Hernández’s bill would not amend that change.

The National Labor Relations Board’s (NLRB) decision in D.R. Horton condemned mandatory arbitration agreements barring class actions as a part of the Board’s larger goal of broadening the definition of “concerted activity.” In other words, the NLRB is trying to expand its power. As Allison Frankel’s “On the Case” explains, a three-judge panel in the Eighth Circuit Court of Appeals was “utterly dismissive” of the NLRB’s analysis and granted the Board no deference. Importantly, the judges noted that most court decisions since D.R. Horton have not used the NLRB’s reasoning.

Teamsters President Jimmy Hoffa Jr. knows a thing or two about steamrolling the opposition. So it’s no surprise that Hoffa supports “reform” of the Senate filibuster, which allows the minority party to stop a bill if it cannot garner 60 votes in its favor. Hoffa explains that if not for the filibuster, EFCA would be the law of the land. Naturally, both parties find the rules afforded the Senate minority abhorrent—but only until that party is in the minority. We’d guess that if the partisan tables were turned and the Employee Rights Act was up for a vote, Hoffa would be singing a different tune.

Though some have started to issue their year-end and presidential-term-end reviews of federal labor law, some recent decisions turn the year on its head—not to mention at least one major chapter yet to be written.

Just last week the National Labor Relations Board (NLRB), ruling on Kent Hospital, decided that lobbying expenses could be considered chargeable expenses if they are “germane to collective bargaining, contract administration, or grievance adjustment.” This means that even if a union member opts out of permitting his or her dues to be used for politics (thanks to the Beck decision) certain lobbying would be still be funded. The problem is that the definition is so broad that a labor union could decide that almost all of its lobbying is germane for these purposes. The NLRB also ruled that Beck objectors are no longer entitled to a detailed audit showing that their dues were not spent on politics.

The Board also went back on half-a-century of labor law in reversing the Bethlehem Steel decision. The NLRB determined that even when a union is on strike or its contract with an employer has expired, the employer must continue to deduct dues and pay them to the union.

The Roundy’s case may be the most significant one that comes before the NLRB this year. And now the NLRB, free of any dissenting voices, can inflict more damage on labor relations than ever before.

The Roundy’s dispute is over access to an employer’s property by unions when that employer allows access for other groups, such as the Girl Scouts. The union wanted to hand out pamphlets encouraging a boycott of the grocer because Roundy’s was not a union store.

But there is a lot more to the case. The implications will likely extend to other forms of property–notably e-mail systems, and may overturn the Bush-era decision of Register-Guard, which stated that “equal” groups were cause-specific. For example, there could not be discrimination of one union over another, or union group versus an anti-union group, but the Girl Scouts and Red Cross could be permitted to operate there because they are groups not related to unions.

What’s at risk here is that the NLRB may use this opportunity to invoke Section 7 and determine that blanket rules banning work e-mail for personal use are not permitted, because e-mail is effective in communicating about organizing or other concerted activity.

In addition to this decision turning labor law on its head, there are serious constitutional concerns for employers. First, employers may be asked to severely compromise their physical property rights by being forced to allow unwanted persons to enter. In turn, depending on state law, there will need to be legal determinations of the status of that person—as in, is that person an invitee or a licensee—a distinction that often matters for purposes of tort law liability.

There are also First Amendment implications of forcing employers to open up their e-mail systems to facilitate speech. The next question would be, of course, to ask how far this must extend to be compliant. If company e-mail becomes a free-for-all, some companies may act to limit e-mail usage altogether. This will in turn hurt productivity.

This NLRB has made it a goal to push the envelope and give a distinct advantage to labor in all disputes. But a decision against Roundy’s in this case might be the most blatant unbalancing of the scales that we’ve seen. A line is crossed when a union is not only given equal standing with an employer, but a clear advantage.

Meanwhile, labor is gearing up for even more organizing in 2013. Truth-Out has given five reasons why it thinks labor will regain some power—all of which add up to more union insolence in the face of common sense and reality. It appears that the author missed the memo: actually making an argument and pounding the pavement to unionize employees is passé. If anything, more strikes and walkouts, for example, will only cause more people to turn their backs on unions.

Once, labor was concerned with preaching to the workers—changing hearts and minds, hoping to rally support among employees to stand up for their rights and effectively make gains collectively. Now, that model has failed, as unions have failed to help their members. Instead, unions will spend member money on politics to make sure that when a labor dispute arises, they only need to preach to the converted.

Now that the dust has (mostly) settled in Michigan, we can take a closer look at what Michiganders can look forward to.

The state will, for the time being, remain a union powerhouse, as current union contracts will not be affected by the change. Right-to-work kicks in upon their expiration. But even without an immediate change, there is the potential for a quick advance for Michigan. There are numerous examples of how Indiana has already benefited from going right to work in February.

And as The Wall Street Journal explains, the economic calculation isn’t an easy task, and certainly not one that is easy to dramatize with a single number. A few highlights offered by WSJ include the fact that in the past three years, private employment has grown 4.9 percent in right-to-work and 3.9 percent in forced unionism states. Other numbers on total compensation vary from state to state, based on industries and other factors. But Mark Arend, editor in chief of the business magazine Site Selection told the WSJ, ”Companies will be more seriously inclined to look at a state if it’s right-to-work.”

And Michigan is likely to gain new residents as well. Vincent Vernuccio and Joseph Lehman of the Mackinac Center say that Michigan was the only state to lose population from 2000-2009. And according to the Miami Herald, one study shows:

Between 1980 and 2010, the economies in right-to-work states grew 3.3 percent annually; in the rest of the states, 2.6 percent. It is certainly no coincidence that between 1984 and 2011, the number of Fortune 500 companies headquartered in right-to-work states more than doubled, from 74 to 157.

Of course, one of the most practical, noticeable gains is in worker freedom. Jennifer Rubin of The Washington Post explains:

No one should be forced to join a union against his or her will. It is antithetical to a free people to have the state invest unions with the power to collude on labor costs and take union dues against employees’ will. Liberals are in favor of forcing employees to join a union; conservatives are in favor of allowing employees to choose not to and to protect employees’ property rights against compulsory dues deduction.

Photo via Flickr user david_shane – Used with Creative Commons Attribution License