LaborPains.org

Labor payback can come in many forms. First, President Obama tried to pass the inappropriately named Employee Free Choice Act (EFCA) that would eliminate basic rights of union members at the behest of union officials. More recently, the D.C. Circuit made it clear that Obama’s recess appointments were unconstitutional. His appointees to the National Labor Relations Board (NLRB), even back in 2010, have been chosen to make sure that labor always wins. Not to mention that Obama just re-nominated the same people he unlawfully “recess” appointed.

The stage is now set for what might be President Obama’s biggest payback to labor yet.

The Wall Street Journal reports that labor unions, once very supportive of Obama’s healthcare reform plan, are now having second thoughts about the “reform.” ObamaCare requires more health insurance coverage than many employers currently provide. Under ObamaCare, families making up to 400 percent of the poverty level will receive some type of subsidy to get the necessary private insurance.

That’s where union officials come in, with their hands out. Multi-employer plans, run by labor unions, must also step up with greater health coverage, which is, of course, more expensive. And since union members are being offered a plan from their employer, via the union, those union members are not eligible for the federal subsidy. Instead, it falls on the union to improve the coverage that it offers.

Now, labor wants some cash thrown its way to make up the difference:

Top officers at the International Brotherhood of Teamsters, the AFL-CIO and other large labor groups plan to keep pressing the Obama administration to expand the federal subsidies to these jointly run plans, warning that unionized employers may otherwise drop coverage. A handful of unions say they already have examined whether it makes sense to shift workers off their current plans and onto private coverage subsidized by the government. But dropping insurance altogether would undermine a central point of joining a union, labor leaders say.

The Tampa Tribune has a simple message for the beggars in organized labor:

Welcome to the real world.

The insurance plans of nonunion employers face the same costs, but no one is contemplating providing them a break.

According to Fox News, Republicans in the Senate are prepared to stop any such attempt:

“The Patient Protection and Affordable Care Act (PPACA) is not ambiguous, in fact it is explicit, on this point,” the lawmakers wrote. “Any consideration of expanding access to subsidies therefore is not subject to regulation, but a change in the law.”

They cited one Congressional Research Service report that said employer-sponsored coverage would “generally” make an employee “ineligible to receive a premium subsidy.”

In one of the rare instances where labor needs to recognize financial realities, union officials face a tough decision that will either lead to cutting the bottom line or, likely, cutting members. As labor union member numbers continue to fall, costs for maintaining these multiemployer plans will continue to rise. Sheet Metal Workers Local 85 in Atlanta, profiled in the WSJ piece, will now have to pay 50 cents to $1 more per hour in member compensation in order to meet the new ObamaCare requirements.

The law is no obstacle for the Obama administration, but it remains to be seen if labor’s pleading for more money will succeed.

Research from the Center for Union Facts Uncovers Union Agenda Behind President Obama’s Minimum Wage Hike Proposal

Today the Center for Union Facts released new research detailing how many collective bargaining agreements link union salaries and wage rates to the federal minimum wage. This research comes two days after President Obama proposed raising the federal minimum wage from $7.25 to $9—a move which labor unions broadly praised.

The research brief can be accessed here.

“This research shows that labor unions stand to gain from minimum wage increases, even though their members don’t make the minimum wage,” said Richard Berman, Executive Director of the Center for Union Facts. “Some union contracts set starting union wages as much as fifteen percent higher than the federal minimum wage.

“Union officials have been anything but altruistic in their support for minimum wage hikes over the years,” Berman concluded. “This also calls into question whether some politicians who support minimum wage hikes do so out of support for unions—the same unions that are some of the nation’s biggest campaign contributors.”

President Obama has re-nominated two members that he had previously, and unconstitutionally, appointed to the National Labor Relations Board (NLRB) in January  2012. Sharon Block and Richard Griffin, first nominated in late December 2011, were never properly vetted by the Senate and were “recess” appointed while the Senate was still in session. The D.C. Circuit Court of Appeals has since ruled that the appointments were not proper.

Despite that ruling, the NLRB has been hearing and deciding cases. Because the Obama appointees are improper, that means that there is only one eligible member of the board. Under the New Process Steel decision, the NLRB must have its full quorum of three members in order to make decisions.

But the record of the current NLRB suggests that following law and upholding precedent are not things this Board does well. The NLRB spent most of 2012 overturning precedent. And former NLRB member John Raudabaugh has noted, many of these decisions could be overturned because of the improper appointments.

President Obama, after a successful reelection campaign, has union payback on his mind, and the current board has done everything it could to support organized labor.

Additionally, suspicion has clouded over nominee Griffin for his previous employment with the International Union of Operating Engineers (IUOE). He’s been accused of covering up embezzlement.

Nonetheless, President Obama has re-nominated Block and Griffin.The fact that both members are currently holding their seats in defiance of a federal appeals court shows their lack of respect for the rule of law.

Yesterday, we found that even a clearly pro-union acting secretary at the Department of Labor (DOL) wasn’t enough to make some members of the American Federation of Government Employees (AFGE) happy. Today, in the alternate universe where the New York Times editors reside, President Obama, too, has not been pro-union enough. The editors write:

What has been missing for years is a forceful labor agenda — one that calls for more jobs, but also has as its goal rising wages coupled with robust hiring.

Mr. Obama can take an important step in that direction by placing his next labor secretary at the center of his economic team. The first-term labor secretary, Hilda Solis, was largely sidelined, a reflection of the administration’s focus on the recovery of Wall Street, not Main Street. Some of the names that have been floated for the job — including Jennifer Granholm, the former governor of Michigan — show that Mr. Obama is seeking someone of high stature, but any secretary’s ability to be a transformative force will depend on the president’s support.

What else would the editors need to see to prove that Obama has a “forceful labor agenda?”  It’s true, as the editors later say, that the Employee Free Choice Act (EFCA) failed miserably in Obama’s first term. But their chief complaint is that Obama wasn’t loud enough about it, with only “scant use of the bully pulpit” in promoting the decimation of employee rights. But the Times board forgets that even when Obama employed it in Michigan, it still didn’t rescue Big Labor from the labor reform movement.

And Solis was no slouch, either. She called herself the “loyal servant” to unions. She changed the rules to favor labor by reducing their reporting requirements and expanding the disclosures for businesses—so much so that proposed regulations will require attorneys to break confidentiality rules.

Obama’s unconstitutional “recess” appointments to the National Labor Relations Board (NLRB) cannot be overstated as a key element to his union agenda. The President was willing to put his executive power on the line just to give organized labor a leg-up at the NLRB, even if that meant choosing a member who has been accused of covering up embezzlement.

Just like the New York City bus drivers union, which is making demands that cannot legally be met, the New York Times editors are asking for the impossible. 

By John Raudabaugh, Former NLRB Board Member

The Noel Canning decision by the D.C. Circuit Court of Appeals has the potential for far-reaching consequences in many areas of the law. The balance of powers between the executive and legislative branches have been recalibrated based on the court’s opinion that President Obama’s recess appointments to the National Labor Relations Board (NLRB) on January 4, 2012 were unconstitutional. The same issue is pending in other circuits, making the case all the more likely to come before the U.S. Supreme Court.

Where labor law is concerned, Noel Canning voids all NLRB decisions rendered since Richard Griffin, Sharon Block, and Terrence Flynn, Jr. were recess appointed to the Board on January 4, 2012. That’s because in the 2010 decision, New Process Steel, the Supreme Court ruled that the NLRB must maintain a quorum of at least three members. Since January 4 of last year, the Board has had no more than two legally sitting members at any one time. If the Supreme Court affirms the D.C. Circuit and invalidates the three recess appointments, parties would prevail in their appeals against the Board, and all Board decisions issued after January 4, 2012 would be void including the following radical decisions:

1.      Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012) [Griffin, Block; Hayes dissenting]. In a 2-1 decision, the Board held unlawful an employer’s practice of asking employees not to discuss matters related to an ongoing investigation with their co-workers. According to the majority, the employer’s directive violated Section 8(a)(1) of the National Labor Relations Act (NLRA) because it had a reasonable tendency to coerce employees in exercising their Section 7 rights to form, join or assist labor organizations. Hayes dissented reasoning that the employer merely made a suggestion and did not promulgate a rule.

2.     Costco Wholesale Corp., 358 NLRB No. 106 (September 7, 2012) [Pearce, Griffin, Block], Knauz BMW, 358 NLRB No. 164 (September 28, 2012) [Pearce, Block; Hayes dissenting], and Hispanics United of Buffalo Inc., 359 NLRB No. 37 (December 14, 2012) [Pearce, Griffin, Block; Hayes dissenting].  In the Costco and Knauz decisions, the Board held that confidentiality and social media policies which would chill employees in exercising their protected Section 7 rights to form, join or assist labor organizations were unlawful.  In Hispanics United, the employer fired five employees for their Facebook posts. A fired employee complained on Facebook that a co-worker “felt we don’t help our clients enough[.] I about had it. My fellow workers how do u feel?” In response, four co-workers posted that the criticism of their job performance was unfair. The Board found the Facebook conversation protected concerted activity because it was an effort to mobilize employees to take action in response to the criticism of their job performance. Hayes dissented because, in his opinion, there was no “evidence of a nexus for group action” but only individual venting.

3.      Finley Hospital, 359 NLRB No. 9 (September 28, 2012) [Pearce, Block; Hayes dissenting]. The Board held that employers must continue providing annual wage increases beyond the expiration dates of applicable collectively bargained agreements despite contract language clearly limiting such actions to the duration of the agreement. Hayes dissented noting that “employers must now bargain for contractual language expressly providing that no increase will be paid beyond the contract term…and unions have been given a powerful new weapon to use during negotiations.”

4.      Alan Ritchey Inc., 359 NLRB No. 40 (December 14, 2012) [Pearce, Griffin, Block]. The Board held that in the absence of a negotiated grievance-arbitration system, an employer whose employees are represented by a union must provide the union notice and an opportunity to bargain before imposing discretionary discipline (for example discharge or suspension) even when such discipline does not alter broad, pre-existing standards of conduct.

5.      Piedmont Gardens, 359 NLRB No. 46 (December 15, 2012) [Pearce, Griffin, Block; Hayes dissenting]. The Board overturned Anheuser-Busch Inc., 237 NLRB 982 (1978) to hold that employers can be required to provide a union representing employees involved in an issue of employee misconduct with witness statements obtained by the employer during its investigation. The Board majority announced a balancing test requiring employers to prove a legitimate and substantial confidentiality interest that outweighs a union’s need for such information. And, an employer must raise its confidentiality concern in a timely manner and bargain with a union in good faith regarding its confidentiality interests and the union’s need for the statements. Hayes dissented recognizing the long standing Anheuser-Busch bright-line rule protecting witnesses from intimidation, coercion and retaliation.

6.      WKYC-TV Inc., 359 NLRB No. 30 (December 15, 2012) [Pearce, Griffin, Block; Hayes dissenting]. The Board overturned Bethlehem Steel, 136 NLRB 1500 (1962), case precedent for more than half a century, to now require employers to continue deducting union dues pursuant to a contractual checkoff obligation even after the collective-bargaining contract expires. Hayes dissented reasoning that dues checkoff, no-strike/no-lockout, and arbitration provisions are all “uniquely of a contractual nature” and expire with the contract term.

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.

Professor John Logan is the director of Labor and Employment Studies at San Francisco State University, and a supposed “expert on the anti-union industry and anti-union legislation in the U.S.” Logan provides a perfect example of this defective memory with his op-ed in The Hill this week. Logan is responding to two articles by Trey Kovacs of the Competitive Enterprise Institute and Fred Wzsolek of the Workforce Fairness Institute, both of which questioned the process around the appointments to the National Labor Relations Board (NLRB).

Recall the purported “recess” appointments to the NLRB by President Obama one year ago. Rather than waiting until the Senate was actually in recess to invoke his Article II, Section 2 power, Obama appointed Richard Griffin, Sharon Block, and Terence Flynn to the NLRB during a pro forma session. This means that the Senate has not officially recessed.

And while people like Logan insist that Obama had to make appointments to the Board so that it would have a quorum, Democrats lacked that concern in 2008, when there were only two NLRB members in office. Prior to Reid’s pro forma revelation, almost all of Bush’s nominees had to be appointed in a (legal) recess. But after 2007, Democrats allowed the Board to dissipate so that it could no longer legally operate, as the Supreme Court ruled in 2010. This led to the invalidation of over 600 decisions.

The Hill reports that at least nine labor unions have donated to President Obama’s second inauguration, which took place today. Those ponying up include:

If you had been paying attention to labor’s pronouncements in August, you might be confused by the last-minute donations. Labor made it clear that it planned not to donate to the Democrats’ Charlotte convention and even staged its own “shadow convention” in Philadelphia. Nonetheless, when the clarion call went out that funding for the inauguration was coming up short, labor delivered. The Democrats’ reliable piggybank of organized labor is back.