NLRB

  • December 12, 2014

    by Caroline Cox

    Linda Greenhouse discusses in The New York Times the Supreme Court and rights of pregnant workers.

    At the blog for the Brennan Center for Justice, Faiza Patel argues that it will take more than body cameras to restore trust in law enforcement.

    Andrew Cohen writes for The Marshall Project about the role of race in interrogation proceedings.

    Brent Kendall and Colleen Wilson report in The Wall Street Journal about the disappearance of a plaintiff whose case was accepted by the Supreme Court.

    Tom Raum of ABC News reports that the NLRB has issued a rule to speed up union organizing.

    At NPR, Sam Sanders takes a look at the recent ruling on Integrity Staffing Solutions v. Busk

  • September 2, 2014

    by Paul Guequierre

    If you’re like me, you’re sitting at your desk on a Tuesday morning after a nice three-day weekend. Perhaps you enjoyed a nice cookout or two, went to a party, or spent the last unofficial weekend of summer finalizing your tan before fall and then winter takes us by storm. It was a great weekend. But as readers of ACSblog, you know the last three days of leisure didn’t come without the blood, sweat and tears of the labor movement. 

    The Tuesday after Labor Day weekend is the perfect time to reflect on what labor unions have done for us, and perhaps even more importantly, what we can now do for labor unions as they face attack after attack by the right-wing. From Scott Walker to Harris v. Quinn, the labor movement is in the middle of a political firestorm, on one front fending off the attacks, and on the other, continuing to fight for fair and just workplaces, livable wages and safe working environments.

  • August 6, 2014
    Guest Post

    by Michael Scimone, Associate, Outten & Golden LLP.

    Last Tuesday, the National Labor Relations Board’s (“NLRB”) General Counsel announced that his office would prosecute McDonald’s USA, LLC for unfair labor practices committed by its franchisees (i.e., the individual restaurants not owned by the corporation, which is most of them).  That means that the NLRB may hold McDonald’s liable if its nominally “independent” franchisees interfere with or retaliate against workers who try to form unions, strike, or demand better pay or working conditions. 

    The GC’s move is an effort to apply common sense to an all-too-common legal dodge.  McDonald’s claims that its franchisees are free to make their own decisions about labor matters.  But that’s hardly true in practice.  Fast food franchisors like McDonald’s have enormous leverage over their franchisees.  McDonald’s computers track franchisees’ sales and labor costs, monitor employee schedules, and calculate how much labor the stores need.  And McDonald’s is famous for controlling just about everything else in its restaurants – where they buy supplies, how they cook their food, and how they advertise the brand.  It even owns the restaurants themselves.  What’s left for the franchisee to control?  Is it realistic to imagine that a franchisee could bargain over wages, schedules, or health and safety without McDonald’s at the table?

    The franchisor-franchisee smokescreen allows McDonald’s to avoid responsibility for a range of labor abuses, from anti-union interference to wage theft.  McDonald’s workers have filed multiple lawsuits seeking to hold McDonald’s, along with its franchisees, responsible for ripping off workers by making them work off the clock and stealing their already-low wages.  McDonald’s, of course, denies all responsibility.

  • July 19, 2013
    Guest Post

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

    When faced with drastic changes to its own rules, the Senate apparently can reach a compromise.  A Democratic threat to use the so-called nuclear option to change the filibuster rules caused Republicans to agree to cease blocking a vote on President Obama’s nominees to various agencies, including the National Labor Relations Board (NLRB) and the Department of Labor.

    This compromise, reached July 16, will enable an up or down vote on the package of five nominees for the NLRB.  As a part of the agreement, the president consented not to re-nominate the two current recess appointees to the Board.  Instead, the president has nominated two experienced labor attorneys, Nancy Schiffer, who recently retired from her position as Associate General Counsel for the AFL-CIO, and Kent Hirozawa, who is on the staff of current Board Chair Mark Gaston Pearce. President Obama previously re-nominated Pearce, whose term expires in August, and nominated two attorneys with long careers representing management, Philip A. Miscimarra and Harry I. Johnson. Thus the package contains the traditional three members from the president’s party and two from the opposing party.

    Hearings are scheduled on the nominations and the agreement raises hope that the Board members will be confirmed before Board Chair Pearce’s term expires in late August, when the agency would once again be unable to act because of the absence of quorum. The four blocked nominees to other agencies have already been confirmed. The actions of Republican senators on the NLRB nominees were part of a pattern of obstructing the president’s nominees. Blocking the NLRB nominees was particularly egregious, however, because the NLRB members, unlike the EPA Administrator and Labor Secretary, serve a judicial function and cannot act without a quorum.

  • June 24, 2013

    by Jeremy Leaming

    Republican obstructionists in the Senate have strived to hobble or make wholly inoperative the National Labor Relations Board, which is charged with protecting the rights of workers, including the right to form unions and engage in collective bargaining. That effort got a boost by the rightward leaning U.S. Court of Appeals for the District of Columbia Circuit, which ruled earlier this year that President Obama’s recess appointments to the five-member board were unconstitutional.

    Today, the U.S. Supreme Court, an increasingly pro-business Court itself, decided to wade into the issue and determine whether the D.C. Circuit got it right in the case, National Labor Relations Board v. Noel Canning. “The specific issue is the scope of the Constitution’s grant of presidential power to put an official temporarily into office without Senate approval – a power that arises when the Senate is not on hand to review that appointment,” writes SCOTUSblog’s Lyle Denniston. “Answering that question could require the Court to define when the Senate, in a legal sense, goes into recess.”

    The D.C. Circuit’s opinion in January found that the president ran afoul of Article II, Section 2, which grants the executive the “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.” For more than a hundred years presidents have made recess appointments to fill executive branch and judicial vacancies that Congress has refused to provide advice and consent on. But the D.C. Circuit panel, made up of Republican appointees, narrowly defined when Congress was in recess, thereby invalidating Obama's recess appointments.

    The president, however, argued that the Senate was bent on blocking his nominations to the NLRB and that it was long past time to make the agency operational. Not surprisingly a group of Republicans lodged a brief with the high court calling on it to let the D.C. Circuit opinion stand.

    The Constitutional Accountability Center, however, lodged a brief urging the justices to take the case and reverse. The CAC’s brief says the D.C. Circuit opinion greatly weakened the recess appointments power by claiming it can only be used “during recesses that occur between enumerated sessions of Congress, and not during any intra-session break.”

    Denniston notes that while the justices may focus on the constitutional questions raised in the case, “the outcome has real potential for giving either the Senate of the White House real tactical advantages in the ongoing confirmation wars. It could give a resistant Senate a chance to nearly take away the president’s recess appointment authority, or it could give the White House a way to get around filibuster-driven obstruction of nominees.”

    As Sen. Elizabeth Warren (D-Mass.) noted at the 2013 ACS National Convention, the Supreme Court has grown increasingly friendly to big business concerns, with the Chamber of Commerce continuing to rack up wins before the high court. The Chamber and other business interests will surely be pushing for a Supreme Court opinion that would narrow the scope of the president’s recess appointments power, especially since the case involves a Board it views as a hurdle to their interests.