Obama Administration 

FOUNDATION ACTION: Foundation Legal Director Warns Congress of NLRB's Big Labor Bias

NOTE: This article is from the March-April issue of Foundation Action, our bi-monthly newsletter. You can sign up to receive a print edition of the newsletter here.  


Foundation Legal Director Warns Congress of NLRB's Big Labor Bias

Testimony highlights Board's indifference to individual workers' rights

WASHINGTON, DC - On February 13, Ray LaJeunesse, Vice President and Legal Director of the National Right to Work Foundation, testified before a subcommittee of the House Committee on Education and the Workforce about the need to more vigorously enforce employees’ rights to refrain from funding union politics.

LaJeunesse, who has over 40 years of experience on the Foundation’s legal staff and has argued four cases before the U.S. Supreme Court, repeatedly criticized the National Labor Relations Board (NLRB) for its lax enforcement of the rights of workers who wish to refrain from union affiliation. Under the Foundation-won Supreme Court precedent Communication Workers v. Beck, private sector employees have the right to refrain from paying for union activities unrelated to workplace bargaining, such as members-only events and union political activism. However, the Obama-era NLRB has shown little interest in helping employees assert their rights to opt out of paying for union politics.

NLRB throws up bureaucratic hurdles to employee rights

LaJeunesse pointed out that the Board has permitted union officials to install a number of bureaucratic hurdles that discourage independent-minded employees from asserting their Beck rights. LaJeunesse noted that many unions now require employees to annually renew their objections to union political spending during a designated “window period,” a practice that allows union officials to continue extracting full dues from nonunion employees if they miss an arbitrary filing deadline.

Moreover, the Board has recently held that nonunion employees can be charged for organizing activities and political lobbying for “goals that are germane to collective bargaining.” LaJeunesse noted that this elastic interpretation of the Supreme Court’s Beck standard undermines the ability of nonunion employees to refrain from funding ideological and organizing activities they may disagree with.

“In sum, the problem is systemic,” concluded LaJeunesse. “The Board has dismally failed to protect workers’ Beck rights. Indeed, the current Board seems bent on totally eviscerating those rights.”

Obama Appointees Kowtow to Big Labor

Unfortunately, the Board – a supposedly neutral arbiter of American labor law – has been stacked with pro-Big Labor appointees throughout the Obama Administration. Former NLRB Member Craig Becker actually worked for the SEIU and AFL-CIO before joining the Board and ruling on cases he was involved with as a union lawyer. Current NLRB Member Michael Griffin also worked as a union lawyer before joining the Board.

“As our Legal Director noted in his testimony before Congress, the Board has shown a total disregard for the rights of independent-minded employees,” said Mark Mix, President of the National Right to Work Foundation. “We hope this will serve as a wake-up call to citizens concerned about the Board’s pro-forced unionism bias.”

 

FOUNDATION ACTION: Foundation's Brief Puts Illegitimate NLRB Appointees on the Spot

NOTE: This article is from the March-April issue of Foundation Action, our bi-monthly newsletter. You can sign up to receive a print edition of the newsletter here.


Foundation's Brief Puts Illegitimate NLRB Appointeees on the Spot

Order sought would force NLRB to cease and desist as long as illegal "recess" appointees remain 

WASHINGTON, DC - In late January 2013, the U.S. Court of Appeals for the District of Columbia struck down President Obama’s controversial “recess” appointments to the National Labor Relations Board (NLRB).  Obama made those “recess” appointments on January 4, 2012, despite the fact that the U.S. Senate was not in recess.

Upon the court’s announcement striking down Obama’s “recess” appointments, NLRB Chairman Mark Pearce issued a statement that the rogue Board was going to continue to operate as normal despite the appeals court decision.

In response, Foundation staff attorneys filed a petition for a writ of mandamus (or prohibition) with the U.S. Court of Appeals for the District of Columbia Circuit asking the court to order the NLRB to suspend further action in a union political lobbying case in which the Board defied Foundation-won Supreme Court precedent and granted union bosses the power to charge nonmember workers for union political lobbying activities.
A mere 12 days after the petition was filed, the court ordered the NLRB to respond and justify its continuing operation.

“For the first time, the NLRB must justify why it is continuing to operate despite the court’s finding that President Obama’s ‘recess’ appointments are constitutionally invalid,” said Ray LaJeunesse, Foundation Legal Director.  “And if the court shuts down the NLRB in this case, it will open the door for challenges in the other cases ruled on by Obama’s so-called ‘recess’ appointments.”

Worker protections at risk

As a result of the appeals court’s ruling, since at least January 3, 2012, the Board has lacked a quorum as required by a 2010 U.S. Supreme Court precedent – thus invalidating the Board’s more than 800 rulings and orders since that time.

One of those cases involves Jeanette Geary, a former Warwick, Rhode Island nurse at Kent Hospital, who filed federal charges against a local nursing union with the National Labor Relations Board (NLRB) in September 2009.  The United Nurses and Allied Professionals (UNAP) union hierarchy was illegally forcing Geary and some of her coworkers, all nonmembers, into paying for the union bosses’ lobbying, including lobbying for legislation in neighboring Vermont.

The U.S. Supreme Court has long held that nonmember workers cannot be compelled to pay for union boss politics.  The U.S. Supreme Court held in the National Right to Work Foundation-won Communications Workers v. Beck case that nonmember workers cannot be forced to pay for union activities unrelated to workplace bargaining, such as members-only events and union political lobbying.

However, in December 2012, the invalid NLRB expanded union bosses’ powers to charge nonmember workers for union lobbying by a vote of three to one – flying in the face of long-standing Supreme Court precedent.  The Board then retained jurisdiction over the case pending further briefing on applying the ruling, forcing Foundation staff attorneys to file the petition that spurred the appeals court to demand an answer from the NLRB on the “recess” appointments issue.

Meanwhile, various federal appeals courts across the country are hearing similar challenges to the NLRB recess appointments. Foundation staff attorneys brought the issue before the U.S. Court of Appeals for the Seventh Circuit in Chicago and have another challenge pending in the U.S. Court of Appeals for the District of Columbia Circuit.  Moreover, challenges from other organizations are pending before the U.S. Court of Appeals for both the Third and Fourth Circuits.

NLRB appeals loss to U.S. Supreme Court

The three judge panel on the appeals court that struck down President Obama’s “recess” appointments ruled that Obama violated Article II of the U.S. Constitution, which requires the President to obtain the advice and consent of the U.S. Senate for appointments to the most powerful positions in the executive branch, and Article 1, Section 5, Clause 4 of the Constitution, which clearly states that Congress decides when there is a recess.

The appeals court adopted arguments made in an amicus curiae (“friend of the court”) brief filed by National Right to Work Foundation staff attorneys for four workers who are receiving free legal assistance from the Foundation in cases pending before the Board.

After conferring with President Obama’s Department of Justice, the NLRB announced in mid-March that it will appeal the appeals court’s decision striking down Obama’s “recess” appointments to the U.S. Supreme Court.  The NLRB’s appeal sets up a no-holds-barred fight over Obama’s “recess” appointments before the High Court.

“We hope the Supreme Court will take this opportunity to rein in the out-of-control NLRB and restore the balance of power the constitution intended,” stated Mark Mix, President of National Right to Work.  “A favorable ruling could shut down the NLRB for the rest of Obama’s presidency, or at least flood it with a backlog of old cases the Board will have to reconsider, thus slowing its onslaught against workers’ rights.”

Federal Appeals Court Strikes Down Obama Labor Board Recess Appointments

News Release

Federal Appeals Court Strikes Down Obama Labor Board Recess Appointments

Right to Work Foundation attorneys argued purported recess appointments were invalid because Senate was not in recess

Washington, DC (January 25, 2013) – Today, the U.S. Court of Appeals for the District of Columbia Circuit struck down President Barack Obama's controversial purported "recess appointments" to the National Labor Relations Board (NLRB).

National Right to Work Foundation staff attorneys filed an amicus curiae brief jointly with the Landmark Legal Foundation in the case, Noel Canning v. NLRB.

The brief was filed for four workers who are receiving free legal assistance from National Right to Work Foundation staff attorneys in cases pending before the Board.

Mark Mix, President of the National Right to Work Foundation, issued the following statement in light of the court's decision:

"Today, the court agreed with Foundation attorneys: Barack Obama's so-called recess appointments to the National Labor Relations Board clearly violate the U.S. Constitution. Because the U.S. Senate was not in recess the President could not make the appointments to the NLRB without Senate confirmation.

"As a result, the Board has lacked a quorum since January 3, 2012, and under a U.S. Supreme Court precedent established in 2010, the court's ruling invalidates the Board's biased and decidedly pro-Big Labor rulings since that time. The court's decision in Noel Canning is a victory for independent-minded workers who have received unjust treatment at the hands of the pro-Big Labor NLRB and will hopefully serve as a persuasive example to other federal courts deciding on the validity of Obama's purported recess appointments."

Click here to see the press release.

Workers Challenge Obama Labor Board Recess Appointments in Federal Appeals Court

News Release

Workers Challenge Obama Labor Board Recess Appointments in Federal Appeals Court

Attorneys argue purported recess appointments are invalid because Senate was not in recess

Washington, DC (October 1, 2012) – National Right to Work Foundation staff attorneys filed a brief in yet another legal battle over President Barack Obama's purported "recess appointments" to the National Labor Relations Board (NLRB).

Foundation attorneys filed the amicus curiae brief jointly with the Landmark Legal Foundation on Wednesday in the case Noel Canning v. NLRB, pending now before the U.S. Court of Appeals for the District of Columbia Circuit.

The brief was filed for four workers who are represented by their Foundation attorneys in cases pending before the NLRB.

Click here to read the full release.

Workers Challenge Obama NLRB "Recess Appointments" in Federal Appeals Court

News Release

Workers Challenge Obama NLRB "Recess Appointments" in Federal Appeals Court

Worker advocate argues Labor Board does not have legitimate quorum to hear pending cases because Congress was not in actual recess

Chicago, IL (July 30, 2012) – Four workers filed a brief today in the U.S. Court of Appeals for the Seventh Circuit in Chicago challenging President Barack Obama's recent purported recess appointees to the National Labor Relations Board (NLRB).

David Yost and Ronald Echegaray of Morgantown, West Virginia, Doug Richards of Ligonier, Indiana, and John Lugo of Chicago, Illinois filed the brief with free legal assistance from National Right to Work Foundation staff attorneys.

Click here to read the full release.


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