Labor law

  • May 14, 2013
    Guest Post

    by Ann C. Hodges, Professor of Law, University of Richmond

    Justice delayed is justice denied. This commonly used axiom best describes the enforcement of the National Labor Relations Act since 2007. For 27 months beginning in late 2007, the enforcing agency, the National Labor Relations Board operated with only two of its five positions filled as a result of legislative paralysis and lack of action by the executive branch.

    In June 2010, the Supreme Court, in New Process Steel v. NLRB, invalidated over 600 cases decided by the Board during that time, holding that the delegation to power to the two members before the expiration of a third member’s term in 2007 was invalid. The Board must have at least three members to act, according to the Court. 

    Maintaining confirmed members on the Board has proved to be extremely challenging in recent years.  Nominations have not received high priority and confirmation has proved extraordinarily difficult, for many of the same reasons that nominations to other agencies and federal courts have failed.

    As a consequence of the inability to obtain confirmation of nominees, President Obama has resorted to recess appointments, like many presidents before him. Yet the D.C. Circuit cast serious doubt on the tactic in its unprecedented January 2013 decision in Noel Canning v. NLRB, which held the most recent recess appointments invalid because the Senate was not in full recess between sessions.

    The NLRB currently has only three members and only one of those is not a recent recess appointee subject to the Noel Canning decision. The sole confirmed member’s term expires in August.

  • May 13, 2013

    by Jeremy Leaming

    Beyond barking about alleged Obama administration ethical lapses, congressional Republicans are continuing to cultivate the primary purpose of their agenda – obstruct, hobble and otherwise prevent all three branches of government from functioning.

    Sen. Minority Leader Mitch McConnell (R-K.Y.) early in President Obama’s first term told a right-wing gathering that Republicans’ primary goal was to prevent a second Obama term. Obviously that goal was not met.

    Nevertheless, the Republican Party, which has grown even more exclusive, largely concerning itself with the interests of the super wealthy or corporate interests, is bent on doing everything it can to ensure that any efforts to help the middle class and the poor do not make much headway.

    One way to do this is to fight efforts to change the make-up of the federal courts, to ensure they remain as business friendly as possible. That’s part of the reason why Senate Republicans have obstructed Obama’s judicial nominations and created a crisis on the federal bench with vacancies hovering over 80 for years. As noted here the president has not been able to place a judge on the august U.S. Court of Appeals for the District of Columbia Circuit, and there are four vacancies on the 11-member court. Sen. Chuck Grassley (R-Iowa), ranking member of the Judiciary Committee, has introduced legislation to cut the number of judges on the court to 8.

    But the obstruction doesn’t stop there. The federal agency charged with carrying out the National Labor Relations Act has been under a constant stream of attack by Republican senators. The five-member board cannot operate without a quorum and after the Republican-controlled D.C. Circuit ruled earlier this year that two of the Board’s members, Richard Griffin and Sharon Block, were improperly appointed during a Senate break, Sen. Lamar Alexander (R-Tenn.) has been calling for them to resign. Doing so would effectively shutter the National Labor Relations Board until the appeals court process runs its course. And by the way, the D.C. Circuit’s opinion in Canning has been widely blasted as resting on wobbly legal grounds. Moreover, the opinion runs counter to other Circuit court rulings on recess appointments, and the Obama administration has appealed it the U.S. Supreme Court. The president has not asked for their resignations, nor should he.  

  • May 13, 2013
    Guest Post

    by Johnda Bentley, Assistant General Counsel, Service Employees International Union (SEIU)

    The National Labor Relations Board (NLRB) is the agency that protects the rights of private sector employees to join together to improve their wages and working conditions. Until the Senate confirms President Obama’s nominees to the NLRB, employees’ rights and our economy are at risk.

    The NLRB stopped functioning properly in late January when the D.C. Circuit invalidated the recess appointments of two of the three current Board members in Noel Canning. With only one valid member appointed, the court concluded, the Board had lost quorum. Since this ruling, employers have challenged the agency’s authority at every level.

    The validity of the recess appointments is unclear. The issue is pending before several other circuit courts, and Noel Canning was appealed to the Supreme Court. However, assuming the Supreme Court grants review, a decision is unlikely before next year. 

    Following Noel Canning, President Obama re-nominated the two recess appointees, both Democrats. And in April, the president made three more nominations, includingtwo Republicans and the current Chairman, a Democrat. The Chairman’s current term will expire on August 27, 2013, unmistakably leaving the Board without a quorum if there are no appointments before that time. If Senate confirms all nominees, there will be a full, five-member Board. 

    In the meantime, the Board continues to issue decisions with the recess appointees, but unfair labor practices largely remain unremedied. This is because orders of the NLRB must be enforced by circuit courts, and all parties have the option to appeal to the D.C. Circuit. 

  • May 9, 2013

    by Jeremy Leaming

    It seems whenever given the opportunity to weaken the judiciary, Sen. Chuck Grassley (R-Iowa) runs with it and in the process spreads lots of misinformation about the federal courts.

    Grassley, who has helped his Republican colleagues in the Senate block or slow-walk President Obama’s judicial nominees, has called for cutting the number of judges on the U.S. Court of Appeals for the District of Columbia Circuit, discussed here.

    Now as the Senate Judiciary Committee begins consideration of the bipartisan comprehensive immigration bill, S. 744, the Ranking Member Grassley has offered 77 amendments to the legislation. Among them is one, dubbed Grassley17, which would isolate immigration court rulings from federal court review. As it stands now, the bill provides for some judicial review. For example, individuals denied citizenship could seek review in a district court or court of appeals pursuant to the Administrative Procedures Act.

    But Grassley’s effort to alter the comprehensive immigration measure would close the door to federal courts, except for one – in Washington, D.C. and only for review of constitutional challenges. Thus if immigration judges improperly deny or revoke citizenship, their actions will largely go unchallenged.

    Not only is Grassley’s effort an affront to judicial review, it is, let’s be honest, a part of a wider attempt to greatly slow or scuttle immigration reform. S. 744 is a rather large bill and far from perfect. It includes stringent enforcement provisions including billions of dollars for the Department of Homeland Security to spend on border enforcement. It also requires undocumented immigrants to wait at least 10 years until they can apply for legal residence and another three years until naturalization, according to The New York Times.

    But senators have offered more than 300 amendments to the immigration reform bill. Seth Freed Wessler of ColorLines says the Republican amendments “would largely gut the promise of a path to citizenship and impose nearly unachievable benchmarks for border security.” Nonetheless Wessler notes Democrats control the committee and are thus likely to hold off many of the amendments. Wessler though notes some of Grassley’s other amendments, such as one that would strike language aimed at protecting “immigrants from being deported because” of anti-immigrant laws, such as the one enacted by Arizona.

  • May 9, 2013
    Guest Post

    by J. Chris Sanders, Counsel, Jobs With Justice

    President Obama’s nominees to the National Labor Relations Board are set to appear before a Senate hearing next week. What's at stake? To recap, the president nominated two labor-side members of the Board, who weren't confirmed due to the dysfunction holding up all kinds of administration nominees. Obama then appointed them in a recess in order to get a quorum of three Board members, who then rendered hundreds of decisions. The regal U.S. Court of Appeals for the D.C. Circuit recently ruled that the recess appointments were improper, and those hundreds of decisions were made without a quorum. So the decisions are in limbo, and the power to decide cases in the future at all is at risk. The administration has appealed the D.C. Circuit’s opinion to the U.S. Supreme Court. In the meantime, the president has nominated two management-side Republicans (a traditional, balanced approach) and re-nominated the chair to complete the five-person Board. They're headed to headhunter hearings before the Senate next week. 

    The dust-up has big consequences for working people, labor law, presidential appointment power, and the rule of law in the workplace.

    Pity the poor NLRB, enforcer of the venerable National Labor Relations Act. Over the last couple of years, this little federal agency has had its turn in the barrel with the "Obama-is-a-socialist" faction. Just one, prominent example: In 2011, a routine investigation found that Boeing's decision to build a new aircraft-production facility in South Carolina instead of at its Seattle base was partly to punish Seattle union workers for previous strikes. (The right to strike- to withhold one's labor to oppose mistreatment- is, at least on paper, federally protected from retaliation.) The evidence was strong, so the NLRB moved forward, and issued an unfair labor practice complaint.

    The mouth-breathers went ballistic. They blew it out of proportion into an attack on the New South and the marketplace. Boeing became a cause célèbre in Republican politics. A congressional committee subpoenaed the NLRB's General Counsel to a hearing in South Carolina. Hundreds of bills have been filed to destroy, de-fang, and de-fund the agency. Its budget is and was under attack, even before the sequester.