• June 5, 2012
    Guest Post

    By Wilson Abney, an attorney and consultant who has advised federal agencies and Congress on government ethics, including as chief counsel to the Senate Ethics Committee and as an attorney for the U.S. Commerce Department and the Consumer Financial Protection Bureau.

    The National Labor Relations Board has jurisdiction over union organizing drives, elections, and labor-management relations in the private sector. NLRB members are appointed by the President and confirmed by the Senate. On January 9, 2012, pursuant to a recess appointment by President Obama, Terrence Flynn was sworn in as a Member of the NLRB. On May 25, Mr. Flynn submitted his letter of resignation effective July 24. Mr. Flynn’s resignation follows two reports issued by the NLRB’s Inspector General (IG) criticizing conduct he engaged in as an attorney on the staff of NLRB member Brian Hayes.  

    Mr. Flynn began working at the NLRB in 2003 as Chief Counsel to Republican NLRB member Peter Schaumber. When Mr. Schaumber left the NLRB, Mr. Flynn joined the staff of Republican NLRB member Brian Hayes.

    According to the IG’s reports, in 2010 and 2011, during his tenure with Mr. Hayes, Mr. Flynn leaked to Mr. Schaumber (who at the time was co-chair of presidential candidate Mitt Romney’s labor advisory committee) and Peter Kirsanow, another former Republican NLRB member (who was serving as outside counsel to the National Association of Manufacturers) confidential information including drafts of NLRB decisions as well as materials constituting NLRB internal deliberations. In addition to Mr. Flynn’s unauthorized disclosure of confidential information received in the course of his official duties, the IG concluded that Mr. Flynn had secretly helped Mr. Schaumber prepare a newspaper opinion piece attacking an NLRB decision characterized as pro union.

  • February 1, 2012

    by Nicole Flatow

    In recess appointing Richard Cordray to the Consumer Financial Protection Bureau and three others to the National Labor Relations Board, President Obama has acted “sensibly and soundly to defend his own prerogatives,” UNC Chapel Hill constitutional law professor Michael Gerhardt said during a House Oversight and Government Reform Committee hearing Wednesday.

    During a more than three-hour hearing that featured sharp questioning and a host of objections to President Obama’s actions by Sen. Mike Lee, Gerhardt explained the clear constitutionality of President Obama’s action, and praised the Office of Legal Counsel’s recent memorandum defending the legality of the action as a “perfectly good example” of the kind of nonpartisan legal analysis performed by the office.

    After dismissing arguments that President Obama did not act during an actual “recess” because the Senate held pro forma sessions every three days, Gerhardt went further to explain that Obama has an affirmative constitutional duty to enforce the laws faithfully, which he was aiming to effectuate in making recess appointments.

    “No doubt in this case the president considered that if he didn’t act there would be laws left unenforced --  laws that he’s obviously trying to do what he can to put into implementation,” Gerhardt said.

    Some of the other witnesses testified that the recess appointments have resulted in uncertainty for businesses, because decisions made by the NLRB and actions taken by the CFPB may be invalidated if legal challenges to Obama’s appointments are successful.

    But Gerhardt agreed with Rep. Danny Davis during questioning that all actions and major pieces of legislation are subject to legal challenge, and there is nothing unique about Obama’s recess appointments.

    “It’s sort of a false premise to say that recess appointments are likely to create litigation when the litigation is likely to take place in any event,” Davis said. “Whether these are recess appointees or any other kind of appointees, individuals still have the option to ask for judicial review.”

    Around the same time that this hearing was occurring, the Senate Banking Committee was also reviving the issue of Obama’s recess appointments during an oversight hearing involving Richard Cordray.

    As The National Law Journal’s Jenna Greene explains:

  • January 17, 2012
    Guest Post

    By Ann C. Hodges, a professor of law at the University of Richmond

    In the past 20 years the Supreme Court has interpreted the Federal Arbitration Act broadly, allowing businesses to require consumers and employees to arbitrate, rather than litigate, many legal claims. Businesses frequently use arbitration agreements to bar class actions, which can be costly and time-consuming. Just last term, in AT&T v. Concepcion, the Court enhanced this business tool, striking down a California law that prevented businesses from barring class actions in cases involving small claims brought by less powerful parties bound to arbitrate by contracts of adhesion. Although the case involved consumers, it offered employers a vehicle to restrict employee class actions.

    The NLRB’s decision in D.R. Horton, issued in early January, significantly limited the effectiveness of this tool for employers by invalidating an arbitration agreement that banned class actions. This case is likely to generate significant controversy, provoking even more attacks on the agency by its vocal critics, but experienced labor lawyers will recognize the case as an unremarkable application of long-settled legal principles.

    Class claims frequently offer the only vehicle for consumers or employees to challenge unlawful actions that cause limited damages to each individual while often reaping millions for the business. For each person injured, the cost of litigating a claim outweighs the potential benefit.  Without class actions, these claims often go unremedied. In the workplace, Fair Labor Standards Act cases seeking minimum wage or overtime payments are most likely to be abandoned on this basis and Horton involved such a claim, alleging that the nonunion employer misclassified employees as exempt from overtime pay.

  • January 13, 2012

    by Nicole Flatow

    The Justice Department’s Office of Legal Counsel released a memo yesterday explaining the legal justification for President Obama’s recess appointments of Richard Cordray to head the Consumer Financial Protection Bureau and three others to the National Labor Relations Board.

    "This is one opinion that is likely to be followed by future presidents,” UNC law professor Michael Gerhardt told Mother Jones. “It's not easy to overturn opinions of the [Office of Legal Counsel], as the history of the [Bush-era] Torture Memos demonstrate."

    The memo concludes that Obama was authorized to act under the Constitution’s Recess Appointments Clause, and that the Senate’s attempt to block appointments by holding “pro forma” sessions every few days did nothing to disrupt its recess.

    "[W]hile Congress can prevent the President from making any recess appointments by remaining continuously in session and available to receive and act on nominations, it cannot do so by conducting pro forma sessions during a recess," Assistant Attorney General Virginia Seitz writes in the memo.

    Ohio State University’s Peter Shane calls the memo’s argument that Obama made the appointments during what was effectively a 20-day recess the more “institutionally modest” approach. He and others have argued that even during a three-day recess, Obama could have made such appointments.

    Bolstering these arguments is the fact that Obama only made appointments to those agencies that were unable to perform essential functions so long as the vacancies remained open.

  • January 4, 2012

    by Nicole Flatow

    Several hours after news broke that President Obama would appoint Richard Cordray to head the Consumer Financial Protection Bureau, Obama announced he would also fill all three empty slots on the National Labor Relations Board.

    The move reaffirms President Obama’s stance that he is able to make recess appointments while Congress is on winter break, even as Senate Republicans attempt to block them by holding “pro forma” sessions every few days.

    In making the appointments, Obama has prevented the NLRB from coming to a standstill. After board member Craig Becker’s term expired yesterday, the agency was left without the required three members to legally operate, as determined by a Supreme Court decision last year.

    In spite of the approaching expiration of Becker’s term, all 47 Senate Republicans signed a letter to President Obama last month asking him to refrain from making recess appointments to the NLRB, and threatening to continue blocking other nominations, according to Politico.

    The agency, which oversees activity between unions and employers, was the object of significant conservative fury in 2011. The Huffington Post summarizes: