Justin's Political Corner

WASHINGTON (AP) — In an embarrassing setback for President Barack Obama, a federal appeals court panel ruled Friday that he violated the Constitution in making certain recess appointments and moved to curtail a chief executive’s ability in the future to circumvent the Senate in such scenarios.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said that Obama did not have the power to make three recess appointments last year to the National Labor Relations Board because the Senate was officially in session — and not in recess — at the time. If the decision stands, it could invalidate hundreds of board decisions.

The court said the president could only fill vacancies with the recess appointment procedure if the openings arise when the Senate is in an official recess, which it defined as the break between sessions of Congress.

The ruling threw into question Obama’s recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau. Cordray’s appointment, also made at the same time, has been challenged in a separate case.

The White House had no immediate comment.

Obama made the recess appointments on Jan. 4, 2012, after Senate Republicans spent months blocking his choices for an agency they contended was biased in favor of unions. Obama claims he acted properly because the Senate was away for the holidays on a 20-day recess. The Constitution allows for such appointments without Senate approval when Congress is in recess.

The three-judge panel, all appointed by Republican presidents, ruled that during one of those pro forma sessions on Jan. 3, the Senate officially convened its second session of the 112th Congress, as required by the Constitution.

“Either the Senate is in session, or it is in recess,” Chief Judge David Sentelle wrote in the 46-page ruling. “If it has broken for three days within an ongoing session, it is not in “the Recess” described in the Constitution.”

Simply taking a break of an evening or a weekend during a regular working session cannot count, he said. Sentelle said that otherwise “the president could make appointments any time the Senate so much as broke for lunch.”

The Obama administration is expected to appeal the decision to the U.S. Supreme Court. But if the ruling stands, it means that hundreds of decisions issued by the board over more than a year would be invalid. It also would leave the five-member labor board with just one validly appointed member, effectively shutting it down. The board is allowed to issue decisions only when it has at least three sitting members.

Obama used the recess appointment to appoint Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn to fill vacancies on the NLRB, giving it a full contingent for the first time in more than a year. Block and Griffin are Democrats, while Flynn is a Republican. Flynn stepped down from the board last year.

The court’s decision is a victory for Republicans and business groups that have been attacking the labor board for issuing a series of decisions and rules that make it easier for the nation’s labor unions to organize new members.

h/t: AP.org

WASHINGTON (AP) — After two years of getting pummeled in Wisconsin, Indiana and other battleground states, leaders of the nation’s big labor unions were beaming on election night.

Labor’s massive voter turnout effort played a major role in helpingPresident Barack Obama win Ohio, Nevada and Wisconsin, according to exit polls, and its leaders are now looking for a more liberal, pro-union agenda from the White House.

“There are things the president can do, and we’ll be expecting that leadership from President Obama,” AFL-CIO President Richard Trumka told reporters after the election.

Topping labor’s wish list — for now — is a push to raise taxes on wealthy Americans and discouraging Obama from agreeing to any deal with Republicans over the looming “fiscal cliff” that cuts into Social Security and Medicare.

But unions are also pressing for new measures that might help boost their sagging membership rolls. New investment in infrastructure would bring construction jobs for trade unions. Immigration reform — and a path to citizenship for 11 million undocumented Latino immigrants — would create a vast new pool of potential union members. And new regulations could remove some obstacles to union organizing.

Business groups that have vigorously opposed efforts to help unions draw new members say they will keep playing defense.

“My primary concern is in the regulations,” said Randel Johnson, vice president at the U.S. Chamber of Commerce for labor issues. “We are afraid that on employment issues, the administration will stay firmly to the left and follow the lead of the unions.”

A new rule expected from the Labor Department would force companies to reveal relationships with so-called union-busting consulting companies even if the companies have no contact with workers. The National Labor Relations Board is expected to start work on a rule that would force businesses to turn over workers’ phone numbers, emails and shift times to union organizers.

The Obama administration might even consider a plan that would give an advantage in bidding on government contracts to companies that offer workers a higher living wage and generous benefits.

Unlike four years ago, unions have not made passage of card-check legislation a centerpiece of their agenda. The long-stalled measure that would require companies to recognize a union once more than half its eligible employees signed union cards instead of putting the question to a secret-ballot vote went nowhere in Obama’ first term, to the chagrin of many union activists.

Card check remains a dead end with Republicans in firm control of the House. Amy Dean, a former head of the AFL-CIO in California’s Silicon Valley, said unions are being more realistic about what they can get.

In addition to measures that may help increase union numbers, labor leaders are also expecting the Obama administration to issue more regulations targeting workplace safety. Proposed rules to protect workers from cancer-causing and lung-damaging silica, often found in the dust at construction sites and glass manufacturing operations, have languished at the White House for more than a year. The administration also has delayed new standards for combustible dust that can cause explosions.

Business groups have opposed the regulations, saying they overreach and would raise employers’ costs by millions of dollars.

h/t: Yahoo! News

President Obama is planning to announce today that, in addition to his recess appointment of former Ohio Attorney General Richard Cordray as the first director of the Consumer Financial Protection Bureau, he will also use his recess appointment powers to place Department of Labor Attorney Sharon Block, labor lawyer Richard Griffin, and NLRB counsel Terence Flynn to the National Labor Relations Board.

Like the CFPB, Republicans have spent the past year blocking nominations to the NLRB in an effort to keep the agency from functioning. Those efforts would have paid off soon, since after Craig Becker’s term on the board expired this week, the NLRB would have been reduced to two members, which is the number it had for more than two years from 2008 to 2010. This effectively shuts down the board, since the Supreme Court ruled in 2010 that two members does not constitute a legal quorum, and thus, a two-member board can’t make binding rulings.

Obama’s appointment of Block, Flynn, and Griffin is important, too, because it boosts the board’s membership to five, protecting its quorum even if member Brian Hayes follows through on his threats to quit. Preserving its right to quorum ensures that its rulings will not be thrown out on legal challenges, as more than 600 cases were by the Roberts Court in 2010.

Republicans have shown outrage at Obama for using his recess appointment powers with Consumer Financial Protection Bureau director Richard Cordray, and similar outrage is likely to follow the news of the NLRB appointments. But the past three Republican presidents also made recess appointments to the NLRB. Ronald Reagan and George H.W. Bush each made three recess appointments to the NLRB, while George W. Bush made seven such appointments.

H/T: Travis Waldron at ThinkProgress Economy.

Updated: Nov. 30, 4:30PM

Despite threats from the sole Republican member of the National Labor Relations Board that he’d quit over a controversial union elections law, the board voted two-to-one on Wednesday to advance part of a rule that union leaders said would decrease delays in the elections process.

The board only voted on portions of the rule that would limit litigation surrounding elections. But GOP member Brian Hayes said that the board’s decision to advance the rules went against tradition.

“I deeply believe that whatever one’s view of the need for election rule revisions may be, a final rule should not be issued in the absence of three affirmative votes to do so,” Hayes said.

“Regardless of whether a two member majority has the technical authority to act or whether there is no internal rule expressly applicable to this situation, I believe the change in current law and procedure without three affirmative votes would be contrary to the spirit of the board’s deliberative traditions, established and honored over decades… and that such actions will ultimately cause harm to the agency and the constituents that we serve,” Hayes continued.

Hayes noted that the upcoming expiration of another board member’s recess appointment would reduce the board to two members, denying them quorum for an indefinite period.

“With all due respect, this is not an emergency situation,” Hayes said. “Board members come and go under our statutory plan. Their timely replacement is a matter for the president and the United States Senate to arrange. In fact, two board member nominations have been pending in the Senate since January of this year. Inaction or disagreement on the nominations is not by itself a justification for preemptive or perceptive rule-making action by two of three sitting board members.”

“Further, no matter how passionately my colleagues believe that the proposed rule will right some fundamental wrong, I trust that they are fully aware that on some quadrennial occasion, the partisan pendulum will swing and the very precedent that they established by changing the law with only two votes may facilitate reversal of that law, presuming Congress does not act first,” Hayes said.

As the Associated Press reported, Hayes absence would have brought the board to a standstill:

But the board’s lone GOP member, Brian Hayes, has threatened to quit the agency over his objection to the planned rules, an unprecedented move that would render the board powerless to approve any new measures at all. The board needs at least three members to make any decisions.

If Hayes leaves, only two members — both Democrats — would remain instead of the five members it’s supposed to have. Congressional Republicans have blocked President Barack Obama from filling the other two vacancies at the board.

The board hasn’t yet finalized the rule, and a resignation by Hayes would still effectively block the measure. But he indicated Wednesday that he’s weighed and rejected that option.

Tomorrow, the National Labor Relations Board (NLRB), an independent federal agency vested with the power to enforce the National Labor Relations Act and “to prevent and remedy unfair labor practices committed by private sector employers and unions,” is scheduled to vote on rule amendments that would streamline the union certification process. Rulemaking is a routine bureaucratic practice, but now the sole Republican on the board’s three-member panel is threatening to block the vote and bring the entire agency to its knees for political reasons.

John Logan, Professor and Director of Labor and Employment Studies at San Francisco State University, wrote in The Hill:

These are strange times at the National Labor Relations Board. First, the Board has endured months of relentless right-wing attacks. Now, in an unprecedented move, Brian Hayes, the sole Republican member of the NLRB — which will be reduced to two members and lacking a quorum by the year’s end — is threatening to resign in order to sabotage a long-awaited new rule on union certification elections. […]

If Hayes resigns, the Board will lack a quorum for a final vote on the rule scheduled for November 30. Republicans have claimed, somewhat incredulously, that the election rule would “cripple American workers’ free choice.” In reality, the rule is designed to do precisely the opposite — cripple the ability of employers to undermine workers’ free choice through the use of dilatory tactics. […]

[T]he GOP attacks on the NLRB, and Hayes’ resignation threat have everything to do with politics and little or nothing to do with law (and even less to do with fairness).

The move would be devastating, given that House Republicans have already indicated they will block President Obama from filling any vacancies on the board. As Logan put it, the agency would be “reduced to a shell.”

This is hardly the first assault on the NLRB from anti-labor Republicans. The 76-year old agency has inexplicably become a favorite target of the House GOP this year. House Oversight Committee Chairman Darrell Issa (R-CA) has been accused of trying to “sabotage” an NLRB investigation into Boeing’s alleged retaliation against unionized workers in Washington state. Issa hyperbolically asserted that an NLRB victory in the case would mean the “forced unionization of America.” Among others, Rep. Trey Gowdy (R-SC) has called for the NLRB to be dismantled, and Rep. Eric Cantor (R-VA) has led the charge with misinformation about the NLRB’s mission and litigation.

Within the next eight days, the National Labor Relations Board plans to vote on a crucial rule that would speed up union elections—a change that’s drawn serious opposition from the US Chamber of Commerce and Republican politicians. Unions are very eager to see the law passed, since employers will often delay union elections until they can quash the organizing drive through intimidation or other means.

The NLRB has only three of five seats filled because of Republican obstruction in the Senate, and with two of those seats being held by Democrats, passage of the rule would seem likely. But there’s one way Republicans can stop this—and they might be on the brink of doing it.

In 2010, the Supreme Court ruled that the NLRB cannot function with only two members, as it did for a brief period at the end of President Bush’s term and the beginning of President Obama’s. The Court found that two members do not constitute a quorum, and invalidated everything the NLRB did during that time.

So in order to stop the union election rule, which is scheduled to be held by November 30, the lone Republican member can simply resign, and poof—no NLRB. This possibility was first flagged Monday by Mike Elk at In These Times, and today The Hill obtained a letter from NLRB Chairman Mark Pearce to the panel’s only Republican, Brian Hayes. The letter clearly indicates that Hayes has threatened to resign:

“In mid-October, I specifically discussed with you a potential schedule for consideration of the rulemaking. You did not offer any alternative schedule,” Pearce wrote in the letter to Hayes. “Instead, you indicated that, if the board proceeded with consideration of the matter, you would consider resigning your position.”

The obvious disadvantage of the resignation scheme, from a Republican point of view, would be that President Obama then gets an extra appointment to the NLRB. But Republicans have been so successful at blocking these nominations they might not be concerned about this possibility—and if Obama loses the 2012 election, it becomes a moot point.

In fact, Republican obstruction in the Senate might kill the NLRB at the end of this year anyhow. The term of Craig Becker, who President Obama put on the board with a recess appointment, will expire when Congress adjourns for the year. If Republicans can prevent Obama from making another recess appointment—as they’ve successfully done in the case of the Consumer Financial Protection Bureau—then the NLRB shuts down.

But for now, the goal is to kill the union election rule—and Republicans may be poised to hit the resignation kill switch. 

Rethuglicans playing politics with union rules as usual and to keep the NLRB from functioning at all (thanks to the minimum of 3 members for quorum rule).

h/t: George Zornick at The Nation

The National Labor Relations Board — which is the federal agency in charge of enforcing the nation’s labor laws — has proposed a new regulation for union elections, aimed at ensuring that employers can’t needlessly delay an election while engaging in union-busting activities. Currently, according to research by John-Paul Ferguson of Stanford Business School, 35 percent of all union elections are called off due to endless delays and often illegal employer opposition.

The NLRB’s proposed regulation would speed up the election process to help workers show their true feelings toward whether or not they want to form a union. However, the one Republican member of the NLRB has threatened to resign from the board if the rule goes forward, which would not only prevent that rule from becoming law, but would cripple the NLRB entirely:

The labor board’s sole Republican member, Brian E. Hayes, has threatened to resign to deny the N.L.R.B. the three-person quorum it needs to make any decisions, according to board officials. Mr. Hayes has made his threat expressly to block the Democratic-dominated board from adopting new rules to speed up unionization elections, which the board’s other current members, both Democrats, intend to pass Nov. 30.

The Supreme Court ruled last year that the NLRB needs three members (out of a possible five) to legally operate. Hayes’ resignation would bring the board down to two members, preventing it from making any decisions. The U.S. already has the weakest labor protections in the developed world, and leaving the NLRB toothless will only make the situation worse.

But this is just the latest episode in a wider GOP attempt to cripple the NLRB (though the first involving a member of the board itself). Republicans have moved several pieces of legislation that would cut the board’s funding and limit its ability to make rules. The GOP also refuses to confirm Obama’s nominees to the board, which is what has left it so shorthanded in the first place.

“Given its recent activity, inoperable is progress,” Sen. Lindsey Graham (R-SC) has said of the NLRB. And now it seems that the Republican member of the board is planning to be complicit with the congressional GOP’s goal.

h/t: ThinkProgress Economy

Late last week, 230 House Republicans and eight Democrats passed the “Protecting Jobs From Government Interference Act.” In truth, the bill is an act of government interference into an ongoing law enforcement case. And rather than protect jobs, the bill actually would put jobs at risk and leave workers exposed to punitive actions by corporations trying to avoid their legal obligations.

Under the federal National Labor Relations Act of 1935, it is illegal for companies to coerce or discriminate against employees who exercise the work-related rights the law guarantees them. Congress invested enforcement responsibility for the law in the National Labor Relations Board, an independent agency.

The new bill would strip the NLRB of the power to prevent companies from illegally shutting down facilities and/or moving operations elsewhere — including overseas — to take jobs away from workers they regard as troublesome.

The immediate excuse for passing the bill is a pending NLRB case involving the commercial airplane division of the Boeing Co. Early this year, the union that represents Boeing employees in Seattle and Portland, Ore., filed a complaint with the NLRB claiming that Boeing was shifting production of some its 787 Dreamliner airplanes to a factory in South Carolina. The move was retribution, the union alleged, for past lawful strikes in 1977, 1989, 1995, 2005 and 2008.

Boeing denied the accusation and said the decision was based on lower production costs in South Carolina.

After conducting its own investigation, the NLRB’s acting general counsel concluded that Boeing had, indeed, violated the law and filed a complaint to that effect.

The evidence cited in the complaint includes published statements and audio and video recordings in which senior Boeing executives, including corporate CEO Jim McNerney and commercial aircraft division CEO Jim Albaugh, indicate that Boeing is moving production to South Carolina because of past labor actions and possible future ones. The case now is in the hands of an administrative law judge, who held an initial round of hearings in Seattle in June.

The Republicans’ profound antagonism toward workers’ rights is unabashed. Rather than trying to undermine them by stealth and misdirection, the party should drop the coy posturing and introduce a bill to repeal the National Labor Relations Act.

South Carolina Gov. Nikki Haley (R) is leading the Republican rage against the National Labor Relations Board ever since it filed a complaint against Boeing for moving its operations to her “right to work” state as a retaliation against strikers in Washington state. Threatening to move facilities because of strikes is illegal under the National Labor Relations Act and is the exact reason given by a Boeing executive for the move.

Haley, however, is decrying the NLRB as a “rogue agency” that’s actions are “absolutely un-American.” In a conference call with reporters yesterday, Haley slammed President Obama as a “coward” for failing to take sides on the issue and is insisting that he disband the agency:

“And as we are looking at President Obama to give his speech on jobs, the only thing I want to hear from him, the only thing the people of this country want to hear from him is that he’s going to disband the NLRB or get them to step down from a great American company that chose to do business in South Carolina as opposed to going overseas.” […]

The South Carolina governor feels so strongly that the independent agency shouldn’t exist that she would even support a decision from the lone Republican member of the NLRB to step down. With the recent departure of NLRB chairman Wilma Leibman, such a resignation from Republican Brian Hayes would reduce the board to just two members — i.e., to less than a quorum.

“Anything that would disband the NRLB, I’d be the biggest cheerleader for,” Haley said.

House Oversight and Government Reform Committee Chairman Darrell Issa (R-CA) is also targeting NLRB, having subpoenaed the agency’s documents on the Boeing decision. NLRB, however, cannot release the documents as it wold jeopardize the court case before an administrative law judge in Seattle, Washington.

The NLRB has long been a primary target in the Republican’s comprehensive campaign to undermine the ability of workers to organize and negotiate better working conditions. No matter how hyperbolic her rhetoric, Haley’s goal is no different.

H/T: ThinkProgress

Apparently, in the alternate universe Republicans inhabit, socialism is on the march and the attack against the “free market” is unrelenting. Where? At the National Labor Relations Board, of course. The truth is—shocking, I know—quite different, and it speaks volumes about the playing field for workers in the real world.

  The NLRB has been under relentless, broad attack from the Republican Party. What terrible things has the NLRB done in recent times?

   Well, it issued rules that would speed up elections. Ain’t that an awful thing? Rather than hold an election months and, sometimes, years after workers petition for that right, the NLRB put out rules that were “intended to reduce unnecessary litigation, streamline pre- and postelection procedures and facilitate the use of electronic communications and document filing.”  But, the party, and its enablers at the Chamber of Commerce, that rails endlessly about “endless” litigation by trial lawyers went ape-shit about a fairly mundane proposal. “This is another, not-so-cleverly-disguised effort to restrict the ability of employers to express their views during an election campaign, to inform employees of the pros and cons of unionization,” said Randel K. Johnson, the chamber’s senior vice president for labor matters.

    Yeah. You mean restrict the right of companies to have enough time to identify union supporters and fire them? Or restrict the right of companies to conduct a brutal campaign of intimidation and fear.

 The NLRB has become a punching bag for the right-wing lunatics who have never accepted ANY notion of a level playing when it comes to workers’ rights to organize unions.

    What the Republican Party—from Michelle Bachmann (who says she would eliminate the NLRB) to Lindsey Graham—have in common is opposition to the rule of law. Because here is what the Wagner Act says:

Employees shall have the right of self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.[emphasis added]

   The problem is that, in reality, in the past 40 years, the Republican Party—and, one must be clear, a number of Democrats—has never accepted that notion.

The facts are in the numbers: under Administrations of both parties the percentage of the unionized workforce has continued to decline.

   Has the attack been less under Democratic Administrations? Of course.

   But, the laws, even in the best of circumstances, do not make it possible for large-scale, mass organizing.

    If you want a window on how unhinged the Tea Party Republicans have gotten when it comes to attacking the NLRB, you can watch this debate I took part in about the proposed new election rules, facing off against a former Republican NLRB Commissioner and Larry Kudlow.

    The most ludicrous part came actually before I come on: Kudlow had a pre-taped preview with Lindsey Graham, both of whom were outraged that the general counsel of the National Labor Relations Board had charged Boeing with illegally retaliating against unionized workers by moving a plant to South Carolina.

   In that pre-taped interview, Kudlow calls the Boeing charge the “assault on free market capitalism”, and fingers labor and the NLRB as the “obstacle to growth everywhere”. I wasn’t on camera but I was laughing out loud about the absurdity of those comments.

     Just as a matter of economics (I’m putting aside morality and the destruction of the middle class) it is absurd to suggest that the labor movement, which represents 7 percent of workers, can exert any serious effect.  

    So, before answering the charges that the world was coming to an end because of these tepid new NLRB rules, I wanted to correct two points. First, as I said, Kudlow, like many men, as a very difficult time with the concept of size…there is no such thing as “Big Labor” when it’s been crushed down to 7 percent in the private sector.

h/t: Tasini at Daily Kos

Apparently now the Republican antipathy to a functioning government extends to calling federal agencies “rogue” for upholding their basic missions. That’s South Carolina Gov. Nikki Haley’s take on the National Labor Relations Board case against Boeing for moving work in (explicitly stated) retaliation for workers exercising their legally protected right to strike. Further,

Haley, a Republican, blamed President Barack Obama for the NLRB action against Boeing.

“For a president who claims he’s about job creation, he’s done nothing but try to kill all our American jobs,” she said.

Who proposes “job-killing” activities? Definitely NOT Obama, Unions, or the Democratic Party. The GOP and the Tea Party, however, have been promoting job-killing policies. Rogue agency my ass.

h/t: Laura Clawson at Daily Kos Labor