NLRB Asks Supreme Court to Overrule DC Circuit’s Decision

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NLRB petitions the Supreme Court for a Writ of Certiorari, or review, of a D.C. Circuit Court ruling that Obama’s NLRB nominees were unconstitutional.

Today, the National Labor Relations Board (NLRB) has filed its petition for U.S. Supreme Court review of the Noel Canning decision. This decision found that Obama’s “recess” appointments to the NLRB were unconstitutional because the appointments did not occur during “the Recess of the Senate”, not “a” recess, meaning an intra-session “recess” doesn’t count, and the vacancies did not “happen during the recess of the Senate.”  Additionally, the Senate was holding pro-forma sessions at the time.

The NLRB’s petition comes at the last possible day that it could be filed, something which has come to be expected of the NLRB. The petition goes into the details of the case, and tries to make the case that since there was no Senate business being conducted during the “pro-forma” sessions, Obama was correct to be able to make appointments during this time.

This goes against the precedent set by the previous administration, where pro-forma sessions were conducted fairly often in order to prevent President George W. Bush from making recess appointments during that time. President Bush had acknowledged and respected the pro-forma sessions, as had President Obama before this point.

Up until now, the NLRB’s position has been that the D.C. Circuit Court’s decision only dealt with the specifics of the single case that was brought before it, but the Supreme Court would have the ability to make a much more sweeping decision.  A sweeping decision could have massive impacts on NLRB cases across the board, which number in the hundreds at this point. These include everything from union elections to the controversial decisions about social media policy.

If the Supreme Court were to find that the members of the NLRB that Obama had appointed were indeed unconstitutional, under the New Process Steel v. National Labor Relations Board case, the decisions made during the time would have to be voided given that there would not have been a quorum of the NLRB present at that time. This may result in a large number of cases that would have to be redone.

Obama’s appointees to the NLRB made some very controversial and anti-employer decisions, which have had an impact on the way some businesses have conducted themselves lately. While some companies may take the position that it’s better to cut their losses at this point, having the chance to re-hear some of the more controversial decisions will definitely help business in the long run. Regardless, the Supreme Court’s ruling will put an end to the uncertainty created by these unconstitutional appointees..

 

NLRB petitions the Supreme Court for a Writ of Certiorari, or review, of a D.C. Circuit Court ruling that Obama’s NLRB nominees were unconstitutional. Today, the National Labor Relations Board (NLRB) has filed its petition for U.S. Supreme Court review of the Noel Canning decision. This decision found that Obama’s “recess” appointments to the NLRB […]

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NLRB Pays Two Employees $100K Each to Work for the Union

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Money for NLRB Union Full Time Official Time WorkAmericans for Limited Government (ALG) has discovered through a Freedom of Information Act (FOIA) request that there are two These are employees whose official job is to handle internal union activities exclusively, rather than carrying out any of the NLRB’s official responsibilities.

Bert Pearlston, General Attorney (Labor) for the NLRB, made $141,726.00 per year, and Steven Sloper, Labor Management Relations Examiner made $116,240.00. With the national median salary at 1 and unemployment of 7.9%, jobs like these would be highly sought in the private sector.

This is in addition to the approximately $510,000 the NLRB pays other employees for part time “official time” union work, or work that only deals with internal NLRB union activities, not the actual official work of the NLRB. As Breitbart reported last week:

…the agency with the highest per-capita use of official time is the National Labor Relations Board. NLRB used 12.38 hours per employee, meaning each of the NLRB’s 1,043 employees required a day and a half of paid representation over the course of FY 2011. The cost of that time was $768,465.14.

The NLRB has run rampant for far too long. ALG is working on legislation to reform the NLRB, and you can get involved. Visit our website at ReformtheNLRB.com to get involved.

Median weekly earnings of the nation’s 103.8 million full-time wage and salary workers were $775 in the fourth quarter of 2012.”  See:  http://www.bls.gov/news.release/wkyeng.nr0.htm.  In a 52 week work year this comes to $40,300.

Notes:

  1. $40,300
Money for NLRB Union Full Time Official Time Work

Americans for Limited Government (ALG) has discovered through a Freedom of Information Act (FOIA) request that there are two These are employees whose official job is to handle internal union activities exclusively, rather than carrying out any of the NLRB’s official responsibilities. Bert Pearlston, General Attorney (Labor) for the NLRB, made $141,726.00 per year, and […]

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Obama “Re-Nominates” Unconstitutional NLRB Appointees Block, Griffin

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After a DC Federal Appeals Court ruled that the “recess” appointment of Richard Griffin and Sharon Block were unconstitutional, Obama is finally asking the Senate for approval for their positions in what is being called “renomination”.

The idea of this being called a “renomination” is laughable, as Obama circumvented Senate approval and ignored the fact that there was a “pro-forma” session in place, a practice started by current Majority Leader Harry Reid to avoid this exact situation.

The Senate’s reaction to this nomination will be very interesting to watch, particularly after 40 Senators sent a letter to the NLRB members asking them to step down. Their reception is anticipated to be cold at best. There has even been legislation proposed to stop the NLRB from enforcing any decisions during that time.

The Senate should reject the unconstitutional appointees, and use every means possible to delay and prevent them from going further. The audacity of Obama’s move to unconstitutionally appoint these nominees shows a lack of confidence they would have been approved on their own, and any attempt to approve them now simply shows a lack of respect for the Senate’s constitutionally-appointed duties.

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After a DC Federal Appeals Court ruled that the “recess” appointment of Richard Griffin and Sharon Block were unconstitutional, Obama is finally asking the Senate for approval for their positions in what is being called “renomination”. The idea of this being called a “renomination” is laughable, as Obama circumvented Senate approval and ignored the fact […]

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40 Senators ask Unconstitutional NLRB Appointees to Step Down

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Following the statement of the National Labor Relations Board that they will not abide by the unanimous opinion of the D.C. Circuit that the appointment of three of their Members to the NLRB was unconstitutional, 40 Senators led by Sen. Orrin Hatch have signed a letter to the NLRB demanding that these appointees step down immediately:

We write to insist that you immediately leave the National Labor Relations Board, withdraw from all Board activities and stop drawing salaries and other benefits associated with the positions you purport to hold, as your purported appointments have been found constitutionally invalid. … ˜The right course of action is for you to leave the Board immediately and cease acting in an official capacity that you legally lack, and for the President to nominate new individuals and allow the Senate to provide its advice and consent. We urge you to do so.

We certainly agree with Sen. Hatch’s sentiment here, however unlikely it may be to elicit action from the appointees. However, it is encouraging to see signs from this many senators that they would not have confirmed these nominees.

Getting the NLRB’s unconstitutional appointees to step down is only the first step to NLRB Reform though. Real reform of the NLRB must address the root issues with the National Labor Relations Act. That’s why we here at Reform the NLRB have prepared the NLRB Reform action plan, which you can freely download here.

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Following the statement of the National Labor Relations Board that they will not abide by the unanimous opinion of the D.C. Circuit that the appointment of three of their Members to the NLRB was unconstitutional, 40 Senators led by Sen. Orrin Hatch have signed a letter to the NLRB demanding that these appointees step down […]

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VIDEO: Obama’s NLRB Appointments Ruled Unconstitutional by Federal Appeals Court

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Americans for Limited Government’s Nathan Mehrens made an appearance on a Fox News Special Report to discuss the federal appeals court ruling that Obama’s NLRB appointments were unconstitutional. See the video for more:

“Since August of 2011, you have not had a three-member board that has been confirmed by the Senate. And so under the Supreme Court’s decision in New Process Steel, this means that all those decisions are void.”

For reference, the New Process Steel case (New Process Steel v. National Labor Relations Board) held that the National Labor Relations Act (NLRA) requires that the NLRB must maintain at least three members to be able to issue decisions.

The NLRB has issued over 200 rulings since Obama’s unconstitutional appointments which could come under scrutiny and even be overturned. This is great news for companies targeted by the NLRB’s pro-labor appointees, but the decision is not final, the Supreme Court may hear the case to issue a final opinion on these decisions.

Unfortunately, simply overturning these cases will not be enough. Without serious reforms enacted to the NLRA and NLRB, Obama will simply find more pro-labor appointments to enact the same anti-employer decisions as before.

Be sure to download the NLRB Reform action plan for more information about what Americans for Limited Government is doing to stop the NLRB from damaging the economy further- treating the disease, not just the symptoms.

Nathan Mehrens from ALG on Obama's Unconstitutional NLRB Appointments

Americans for Limited Government’s Nathan Mehrens made an appearance on a Fox News Special Report to discuss the federal appeals court ruling that Obama’s NLRB appointments were unconstitutional. See the video for more: “Since August of 2011, you have not had a three-member board that has been confirmed by the Senate. And so under the […]

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NLRB Election Rule Overturned for Lack of Quorum

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From the Labor Relations Institute:

The United States District Court for the District of Columbia just ruled that the NLRB lacked a valid 3-member quorum to adopt its “ambush election” rulemaking in December 2011. You can read the decision here. Since Member Brian Hayes refused to participate in the actual vote on the rule, the Court ruled that this prevented the Board from achieving a valid quorum. While the new NLRB can re-vote the rule (although whether this Board constitutes a valid quorum is also under question in separate litigation), the District Court denies the Board’s authority to operate under the new rules.

 

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From the Labor Relations Institute: The United States District Court for the District of Columbia just ruled that the NLRB lacked a valid 3-member quorum to adopt its “ambush election” rulemaking in December 2011. You can read the decision here. Since Member Brian Hayes refused to participate in the actual vote on the rule, the Court […]

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Strike up the Band- More NLRB Madness!

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Under the Obama administration, the National Labor Relations Board has been running amok, wreaking havoc and leaving a general uncertainty in businesses and employers across the country. In a decision from the beginning of the year, the NLRB has proven they’re not yet through making arbitrary anti-business decisions- and that no company or employer is safe. This time, they’re going after the Lancaster Symphony Orchestra.

On December 27, 2011- just two days after Christmas- the NLRB issued a decision declaring that musicians performing in an orchestra were employees, not independent contractors. This qualifies them to form a union, exact demands out of their “employer,” and claim more costly benefits than they could as independent contractors.

The musicians performing in the orchestra have a wide level of discretion to decide for how many performances they wish to participate. They practice on their own time, and with the exception of pianists they provide and maintain their own equipment (instruments.) The agreement that the musicians sign with the orchestra states that the musicians are independent contractors. The musicians are paid on a per performance and practice basis. But that wasn’t enough for the board.

The Board made their decision noting the following ridiculous factors:

  • Musicians must be in their chairs at the appointed time that practices begin;
  • Musicians are required to remain at the practice until it is over;
  • The conductor determines how loud certain instruments are to be played;
  • The conductor determines when certain instruments are to “come in” during a performance;
  • The musicians are not allowed to cross their legs;
  • The musicians are required to turn the pages of their music as quietly as possible;
  • The musicians must adhere to a dress code; and
  • The musicians, in the Board’s opinion, are not taking any economic risk and thus are not entrepreneurs.

While most people would consider these factors a regular part of being in an orchestra, the Board judged these factors as proof that the orchestra is actually made of employees, not independent contractors.

Member Hayes dissented from the decision and stated among other things that the musicians do in fact exercise an “entrepreneurial opportunity for gain” because they have the “freedom to take as many or as few jobs” as they wish. Hayes also pointed out that “without the musical instrument, there could be no music” and as such the provision of the other necessary parts of a performance, e.g., chairs, music stands, etc. should not be considered in the same category as the instruments. As such he would have given greater weight to the provision of the instruments by the musicians and less weight to the provision of other incidental items by the orchestra.

Unfortunately, Hayes’ voice is all too often drowned out by the other political appointees on the Board. Their continued bias against businesses and employers has created a pattern that creates uncertainty in an already unstable economy.

Lancaster Symphony Orhcestra

Under the Obama administration, the National Labor Relations Board has been running amok, wreaking havoc and leaving a general uncertainty in businesses and employers across the country. In a decision from the beginning of the year, the NLRB has proven they’re not yet through making arbitrary anti-business decisions- and that no company or employer is […]

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NLRB numbers add up but the rhetoric doesn’t

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Anti-NLRBBy Mark Wohlschlegel II — As has been his practice, Acting General Counsel Lafe Solomon released his annual summary of the National Labor Relations Board’s (NLRB) activities for the Fiscal Year.

One would expect all doom and gloom considering the harsh picture painted by critics of the union election process and how hard they and members of the NLRB had to fight (both internally and externally) last year to push through their “streamlined elections” rule.  It was heralded as necessary to “reduce unnecessary litigation” and “streamline pre- and post- election procedures.”

If you listened to AFL-CIO President Richard Trumka, the process was a “broken, bureaucratic maze.”  Rep. George Miller (D-CA) also criticized it as vulnerable to manipulation and delay.

Yet, despite all this criticism, Acting General Counsel Solomon praises the work of NLRB in Fiscal Year 2011 as “once again outstanding.”

This praise seems rather out of place given the harsh rhetoric above that describes a system that is both “broken” and “vulnerable.”  However, upon investigation of the numbers, one cannot help but notice a clear contradiction.

As indicated in Table 1, the NLRB’s efficiency in conducting elections has remained rather steady over the past four years.

TABLE 1 NLRB Elections Initial Representation Elections %Voluntary Election Agreement %Elections held within 56 days Median number of days election held
FY 2011 1,423 89.0% 91.7% 38
FY 2010 1,790 92.1% 95.1% 38
FY 2009 1,690 91.9% 95.5% 37
FY 2008 2,085 91.8% 95.1% 38

Table 2 makes the point that the NLRB has accomplished this despite having a fluctuating caseload over the past four years.

TABLE 2NLRB Case Loads & Decisions Case Intake (totals) Representation  Cases (totals) %Representative Case Decisions per 100 days %Unfair Labor Practice Cases Decisions per 120 days %Meritorious Unfair Labor Practice Cases per 365 days
FY 2011 24,990 2,813 84.7% 72.5% 83.2%
FY 2010 26,585 3,204 86.3% 73.3% 84.6%
FY 2009 25,853 2,912 84.35% 70.93% 79.69%
FY 2008 25,901 3,400 83.50% 68.10% 75.22%

Similar to our comment submitted on NLRB’s Streamline of Elections Rule, the numbers here do not justify either the harsh criticism of the process, or the NLRB’s curious urgency in implementing the sweeping reform of “streamlining” union elections.  Overall, the NLRB has maintained steady progress in both its effectiveness and efficiency of handling its workload.  In FY 2011 the numbers dip slightly. That being said, the NLRB admittedly still met most of their targets for the year:

The Agency exceeded two of its three ambitious overarching goals and came close to achieving the third, closing 84.7 percent of all representation cases within 100 days (target 85 percentg), 72.5 percent of all unfair labor practice cases within 120 days (target 71.2 percent), and 83.2 percent of all meritorious unfair labor practice cases within 365 days (target 80.2 percent). The target for each 2011 overarching goal was higher than in FY 2010 and has been increased for FY 2012.

In his report, Solomon further detailed exceeding their other targets under Elections, but curiously did not highlight it in the summary of achievements.  Here we find the following:

TABLE 3NLRB’s FY 2011 ELECTION Goals /Achievements NLRB Goals NLRB Achievements
Voluntary Election Agreements 85.0%  89.0%
Elections Held within 56 Days 90.0%  91.7%
Median number of Days between petition filing and Election 42 days  38 days

By most standards, most anyone else would call this progress.  Out of 1,423 initial representation elections, 89 percent reached a voluntary election agreement, with 91.7 percent taking place within 56 days, the medium being 38 days.  This means that only eleven percent of elections were contested in FY 2011, with less than nine percent extending beyond 56 days.

To put this in perspective, former Solicitor of Labor under President George W. Bush, Eugene Scalia drew a very interesting comparison last year when commenting on NLRB’s plan to streamline union elections.

An irony to the NLRB’s move to expedite union elections is that these already are among the fastest legal proceedings known to man. In 2010, according to the NLRB’s acting general counsel, the median time to an organizing election after the union petitioned was 38 days, and “95.1 percent of all initial representation elections were conducted within 56 days.” By contrast, a federal court case — which often is less decisive to a company’s future than unionization—takes a median of seven and a half months, not counting appeal. A defendant has 21 days to file an answer, a deadline that’s commonly extended.

Therefore, we are left with the begging question, echoed by Congressman John Kline and the Education and Workforce Committee: “If the NLRB is doing an ‘excellent’ job, are radical changes to the current election rules really necessary?”

Mark Wohlschlegel is a Staff Attorney for Americans for Limited Government (ALG).

By Mark Wohlschlegel II — As has been his practice, Acting General Counsel Lafe Solomon released his annual summary of the National Labor Relations Board’s (NLRB) activities for the Fiscal Year. One would expect all doom and gloom considering the harsh picture painted by critics of the union election process and how hard they and […]

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