D.C. Circuit Court of Appeals Overturns NLRB Poster Ruling

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D.C. Circuit Court of Appeals overturned a National Labor Relations Board (NLRB) mandate forcing employers to post pro-union posters or face unfair labor charges.

These posters would tell employees about their right to unionize, without informing them of any of the potential drawbacks. Any employer could be charged with an unfair labor practice simply for not posting the flyer.

Americans for Limited Government’s Nathan Mehrens had this analysis:

The court made the right decision here, finding the Board cannot make the failure to post a Board-mandated poster an unfair labor practice because, among other reasons, the Board could not make an employer’s speech advising employees that they do not have to join a union an unfair labor practice. Also, because the poster requirement had no basis in the statute itself, the court ruled the Board cannot just make up what it deems to be an unfair labor practice and then compel employers to abide by their arbitrary definition.

The court also tossed the tolling provision in the rule and held that because the Board wouldn’t have promulgated the rule without those provisions that the rest falls also. Two judges would have gone even further to hold that the Board lacks the statutory jurisdiction to promulgate the rule in the first place.

Mr. Mehrens went on to say that while the court did bring up and dismiss the issue of the unconstitutional appointees, it was only dismissed because there was still a quorum of constitutionally-appointed judges. This means that there may still be other future cases where the unconstitutionally appointed judges are called into question, as in the Noel Canning case.

The case may not fully prevent the NLRB from trying to bring up the poster issue in the future. The NLRB board may decide to ask employers to hang these posters again- as long as there’s no enforcement of the rule. Without enforcement, this mandate will have no teeth and is not likely to see much adoption by non-union employers.

This adds to the continuing saga of issues with the National Labor Relations Board. It also gives credence to the argument that the Board has become extremely partisan. Many of their decisions have been tilted towards unions and against employers- a dangerous balance in a recovering economy.

D.C. Circuit Court of Appeals overturned a National Labor Relations Board (NLRB) mandate forcing employers to post pro-union posters or face unfair labor charges. These posters would tell employees about their right to unionize, without informing them of any of the potential drawbacks. Any employer could be charged with an unfair labor practice simply for […]

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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.

NLRB-unconstitutional-appointees-sharon-block-richard-griffin

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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NLRB Drops Black Friday Illegal Picketing Case Against UFCW

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The NLRB has decided to hold the charge of UFCW’s allegedly illegal picketing at Walmart in abeyance, meaning that if nothing further happens, the case will be dropped. The UFCW has promised that after their allegedly illegal Black Friday protests, they will not be pursuing any further organizing efforts against WalMart.

However, for the NLRB to take the UFCW at their word is not wise, as the UFCW has a nasty habit of pursuing organizing activity even after it is clear that their efforts will be fruitless. As stated by our friends at the UFCW Monitor:

Now the UFCW is claiming that since their defeat, they will not be pursuing further action against Walmart. To that, we say their actions prove otherwise- the UFCW has not let a little illegal action stop them before, and thave have continued to press their luck when it’s clear their efforts will not pay off. It may only be a matter of time before this case is in front of the NLRB again.

For more on the story, and the UFCW’s allegedly illegal actions, scandals and more, go to UFCWMonitor.com.

The NLRB has decided to hold the charge of UFCW’s allegedly illegal picketing at Walmart in abeyance, meaning that if nothing further happens, the case will be dropped. The UFCW has promised that after their allegedly illegal Black Friday protests, they will not be pursuing any further organizing efforts against WalMart. However, for the NLRB […]

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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 Appointee Griffin Tied to Mob and Corruption

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The rap sheet for members of the International Union of Operating Engineers reads like something out of “Goodfellas.”

Embezzlement. Wire fraud. Bribery. That’s just scratching the surface of crimes committed by the IUOE ranks. And it is from this union that President Obama earlier this year picked one of his latest appointees to the National Labor Relations Board, the federal agency tasked with resolving labor disputes between unions and management.

That recess appointee, Richard Griffin, was former general counsel for the 400,000-member union of heavy equipment operators — a union tainted over the years by mob connections and a history of corruption.

Public documents obtained by Fox News show that more than 60 IUOE members have been arrested, indicted or jailed in the last decade on charges that include labor racketeering, extortion, criminal enterprise, bodily harm and workplace sabotage.

Read more: http://www.foxnews.com/politics/2012/06/22/obama-pick-for-nlrb-union-tainted-by-mob-ties-criminal-past/

The rap sheet for members of the International Union of Operating Engineers reads like something out of “Goodfellas.” Embezzlement. Wire fraud. Bribery. That’s just scratching the surface of crimes committed by the IUOE ranks. And it is from this union that President Obama earlier this year picked one of his latest appointees to the National […]

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NLRB Region Unleashes Micro-Unit On Retailer

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Over the course of the last two years, Barack Obama’s union appointees at the National Labor Relations Board have been waging a war against America’s union-free workplace. While the NLRB’s prosecution of the Boeing Company for the alleged “crime” of opening a non-union pant in South Carolina captured much media attention, when taken in their totality, the less-reported decisions and rule-making that Obama’s appointees have issued is, to America’s union-free workplace, akin to a death by a thousand cuts.

Read more: http://www.laborunionreport.com/portal/2012/05/divide-conquer-destroy-nlrb-region-unleashes-micro-unit-on-retailer/

Over the course of the last two years, Barack Obama’s union appointees at the National Labor Relations Board have been waging a war against America’s union-free workplace. While the NLRB’s prosecution of the Boeing Company for the alleged “crime” of opening a non-union pant in South Carolina captured much media attention, when taken in their […]

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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.

 

nlrb-logo-obama-appointments

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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