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.

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.

Filed under “this is awkward,” the Philadelphia Daily News reports (via Philly.com) that its parent group, Interstate General Media (IGM), has given the employees of the News, Philly.com, and the Philadelphia Inquirer an ultimatum: Come to a union agreement by Friday or we’ll liquidate. Although the newsroom staff has a contract that runs until October, the company’s ten remaining unions are currently working without a deal.  We’re looking forward to some interesting reporting by these union members as they give us the play-by-play of their own fate.

The Michigan Economic Development Corporation (MEDC), believing (correctly) that right-to-work laws are a draw for businesses, advertised as much in the Wall Street Journal last week. But not everyone is happy: Opponents of the legislation are appalled that the ad invoked the popular advertising slogan, “Pure Michigan.” MEDC’s president defended his company’s decision: “Freedom to work is now a law of the state of Michigan, and our job is to sell to the business community all the advantages they may have in doing business in Michigan.” General Motors, for one, agrees.

Acting General Counsel Lafe Solomon has ordered that the National Labor Relations Board (NLRB) begin to accept compensation in lieu of reinstatement in all cases of unlawful discharge or layoff. Prior to this, “front pay,” as it’s known, was only done in side letters, outside the reach of the NLRB. Statistics show that this appears to be a reflection of a trend of declining rates of acceptance of reinstatement offers.

Teamsters Unionize Truck Drivers at Southern CA Ports

Having suffered a costly port strike in December, the businesses—to say nothing of the millions of Americans—who rely on the ports of Los Angeles and Long Beach won’t be happy to hear this news: The Press-Telegram reports that 65 truckers for Toll Group have reached a union contract agreement with port management. The paper declared them “the first truckers at the port complex to win a collective bargaining agreement since Congress deregulated the industry three decades ago.” 

Lafe Solomon, the Acting General Counsel of National Labor Relations Board, released his office’s annual report this week. The report revealed that almost 94 percent of all initial union representation elections were held within 56 days of filing unionization petition, with a median of 38 days. The much-needed Employee Rights Act proposed that there be standard election timing, requiring 40 days between the filing of the petition and the vote.

One of President Obama’s contested recess appointees to the National Labor Relations Board (NLRB) is facing a lawsuit where he and several others have been accused of violating the law written to prosecute mobsters.

Although Richard Griffin became a member of the NLRB over a year ago, the President’s decision to appoint him without the constitutionally-required advice and consent of the Senate means that we may never be able to fully vet his record.

Lachlan Markay, writing for the Washington Free Beacon, reports that Griffin, the former general counsel to the International Union of Operating Engineers (IUOE), has been named in a civil lawsuit that invokes the Racketeer Influenced and Corrupt Organizations (RICO) Act and the Labor Management and Disclosure Act (LMRDA) to claim that union leadership helped perpetrate a cover up by threatening and firing union members who were investigating embezzlement in a union local.

The union member plaintiffs allege that another member of IUOE Local 501 in California was embezzling union funds by improperly spending the money on “expensive lunches with his mistress” and other unauthorized expenses. The business manager investigated, and after an independent audit, ordered that the accused repay $4,000. But the general president of the union, Vince Giblin, ordered the business manager to end the investigation. Giblin then threatened to put Local 501 under the control of the international union unless the business manager and his associates resigned.

The complaint alleges that Griffin, in his role as counsel to the international union, relayed this and other threats against the Local 501 investigators on behalf of Giblin.

This isn’t the first time that Griffin’s association with the IUOE has been in the headlines. A year ago, Griffin’s financial disclosures indicated that he would continue to receive pension payments from the IUOE while he serves as a member of the NLRB and decides cases that affect federal labor law.

Although Griffin hasn’t been found guilty of anything — he’s only been named as a defendant in a civil lawsuit — the dispute has been long-running and ongoing, even though the lawsuit was only served on Griffin in December. But since Griffin is a presidential appointee, shouldn’t we have heard about it sooner?

Information is trickling out, in fits and starts, because Griffin was a “recess” appointment to the NLRB who faced no scrutiny.

While Congress was still in session in early 2012, President Obama appointed Griffin, along with Sharon Block and Terence Flynn, to the NLRB. Unlike President Obama’s claims to the contrary, Senate Republicans had not “stalled” Griffin’s or Block’s appointments. The pair was only tapped as nominees to the NLRB on December 14, 2011. Obama “appointed” them on January 4, 2012. The process from nomination to appointment was so quick that the tech-savvy White House wasn’t even able to post their nominations on its website before they allegedly took office.

Legal scholars, including Former Attorney General Ed Meese, have criticized Obama’s appointments, and there are several pending cases challenging their validity. In the meantime, expect to hear no more than dribs and drabs about Griffin’s history and his fitness to serve as an NLRB member. Parties before the Board deserve better than that. President Obama refused to let the Senate look into Griffin’s record, and we are slowly finding out why. The President favored political expediency over the constitutional process, and this is the result.

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.