Right to Work Foundation Attorneys Move to Disqualify Controversial Recess Appointees from Six Cases

Argue Labor Board does not have legitimate quorum to hear pending cases

Washington, DC (January 30, 2012) – Today, National Right to Work Foundation attorneys filed motions with the National Labor Relations Board (NLRB) to disqualify President Barack Obama's recent purported recess appointees to the agency from participating in the Foundation's six cases pending before the Board.

Foundation attorneys argue that the appointments are unconstitutional and, therefore, the Board lacks the quorum necessary to hear Foundation cases. This legal challenge is part of an ongoing controversy over the constitutionality of Obama's recent move to install three members to the NLRB as "recess appointees" despite the fact that the U.S. Senate was not in recess.

Foundation attorneys also were among the first to challenge the constitutionality of Obama's "recess appointments" in federal court. An earlier motion challenging the appointments, filed by the Foundation and other plaintiffs challenging the NLRB’s notice posting rules, is pending in the U.S. District Court for the District of Columbia.

Read the entire release here.

Read one of the Foundation attorneys' motions to disqualify the "recess appointees" here.

Worker Advocate Challenges Constitutionality of Obama's Controversial Labor Board Recess Appointments

Case over controversial NLRB posting becomes first legal challenge to Presidential attempt to make "recess appointments" without actual recess of the Senate

Washington, DC (January 13, 2012) – Today, National Right to Work Foundation attorneys filed a motion in federal court challenging the legality of President Barack Obama's recent purported recess appointments to the National Labor Relations Board (NLRB).

The legal challenge is part of a larger case attacking controversial new NLRB rules that require every employer to post incomplete information about employee rights online and in the workplace, even if they've never violated or been accused of breaking federal law. The NLRB's posting rules do not require union officials to issue information about workers' rights to refrain from union membership or opt out of union dues. Currently employers can only be required to post notices if the Board has ruled that a violation of labor law occurred.

The Foundation's case has been consolidated with other legal challenges to the biased NLRB notice posting rules brought by the National Federation of Independent Business (NFIB), Coalition for a Democratic Workplace (CDW), and two small businesses. Those parties filed the joint motion today raising the issue of the NLRB's lack of authority to implement the rule given the unprecedented recess appointments.

The new filings in the U.S. District Court for the District of Columbia case comes after NLRB lawyers notified the court that President Obama's recent recess appointees were now parties in the ongoing legal battle. Under the U.S. Supreme Court's New Process Steel decision, the NLRB needs three members to act. However three of the five current NLRB members were installed by unilateral Presidential appointment earlier this year, despite the fact that the Senate was not in a self-declared recess.

In the motion papers, Foundation attorneys argue that the controversial appointees to the Board are not legitimate because the U.S. Senate is still in session per the body's rules, so there was no "recess" for the President to make appointments without Senate confirmation. Therefore the NLRB lacks the necessary quorum to implement the new posting rules. Foundation attorneys are asking the judge to rule on the constitutionality of the three recess appointees.

Read the entire release here.

Today, Mark Mix, President of National Right to Work was published in the Washington Times regarding today's U.S. Senate vote on Senator Harry Reid's Police and Firefighter Monopoly Bargaining Bill (S. 3991). Despite voters sending a clear message to Washington last month, it appears some pro-forced unionism senators didn't quite get the message:

If Mr. Reid cared one whit for what ordinary Americans think, he would respond to such electoral drubbings for his fellow Big Labor Democrats and GOP fellow travelers by backing away from federally mandated union-boss control over public-safety officers. Instead, he announced over the weekend that he will file for cloture and force a vote on this draconian bill on Wednesday. Among those voting will be 14 defeated or retiring senators who won't be back in January.

Federalizing union monopoly bargaining over public-safety employees would be ill-advised under any circumstances, but at a time when taxes are already poised to skyrocket and cities and towns across America are already struggling to get through the worst fiscal crisis in decades, Congress would have to be incredibly reckless to enact this harmful legislation.

By tipping the scales even further in favor of government employment growth over job growth, S. 3991 could damage the hopes of reviving America's private-sector economy. Moreover, as former Service Employees International Union second-in-command Anna Burger boasted, a federal public-safety union mandate would "create a national collective," i.e. monopoly, "bargaining standard for all [state and local] public workers."

Meanwhile, the Washington Post came out with a hard-hitting editorial against the bill:

...the Senate is about to take up a measure that might compound the financial predicament of state and local governments. Pushed by Majority Leader Harry M. Reid (D-Nev.), the Public Safety Employer-Employee Cooperation Act would require all states to give police and fire unions "adequate" collective bargaining rights - as determined by the Federal Labor Relations Authority. Unions could sue states deemed "inadequate" in federal court. Mr. Reid is trying to get this measure through the lame-duck Congress as a reward to the firefighters' union, which backed his reelection campaign. But it also enjoys support from several key Republicans. 

We share the sponsors' high regard for first responders. But this measure would trample long-standing state autonomy in public-sector labor relations, to no obvious national purpose. Of the 10 states with the lowest violent crime rates in 2008, three did not require collective bargaining for police and one, Virginia, forbids it for all public employees.

The bill could disrupt the law in both Virginia and Maryland, the latter of which lets counties decide whether and how to bargain with employees. The predictable result would be higher costs for employee contracts or legal bills - or both - at precisely the moment when cash-strapped states and localities can least afford them.

It's no wonder that the Fort Worth Star-Telegram declared today that "The Senate would do taxpayers a big favor by killing this bill."

As reported in today's Washington Examiner, the National Right to Work Committee President Mark Mix sent a letter to the U.S. Senate opposing Elena Kagan's confirmation as a Justice to the U.S. Supreme Court for misrepresenting her views regarding the use of forced union dues for union boss political activity.

From the Examiner:

(Mark Mix argues) Kagan should not be confirmed because when she was asked by Sen. Orrin Hatch, R-UT, about a 1996 email she wrote while serving in the Clinton administration, she falsely claimed she was merely repeating the chief executive's views, not her own.

In his letter to the senators, Mix quoted Kagan's email in which she said:

"It is unfortunately true that almost any meaningful campaign finance reform proposal raises constitutional issues. This is a result of the Supreme Court's view - which I believe to be mistaken in many cases - that money is speech and that attempts to limit the influence of money on our political system therefore raises First Amendment problems."

Kagan could not have simply been echoing somebody else's view in that email, Mix argued, because a memo later in 1996 from her and other White House staff members to then-White House chief of staff Leon Panetta "incorporated Ms. Kagan's argument that the First Amendment does not protect the right to spend money for political activities. In short, in 1996 Ms. Kagan both suggested and endorsed that crabbed view of the First Amendment."

The National Right to Work Legal Defense Foundation has repeatedly fought to protect workers who are forced to pay union dues and fees as a condition of employment to also support union boss political activities with which they disagree before the U.S. Supreme Court and various other courts across the country.

Mark Mix's letter also noted that Kagen expressed opposition to the Foundation's Supreme Court victory in Communications Workers v. Beck in which the Court affirmed the right of private-sector workers to exercise the same freedom from coerced support of union boss politics under the National Labor Relations Act:

(Ms. Kagan) recommended that President Clinton oppose any legislation protecting the right of workers not to be forced to subsidize union politics, despite the First Amendment’s guarantee of that basic worker freedom of speech and association.

...

Ms. Kagan emailed… her recommendation that (the Administration)… “state strong opposition to Beck legislation, no matter what it is attached to.”

Ms. Kagan… disagreed with the well-established legal principle that underlies the long line of Supreme Court decisions recognizing the constitutional right of workers not to be compelled to subsidize union political activities as a condition of employment… (putting) her far outside the judicial mainstream and (demonstrating) a disdain for the rights of independent-minded American workers.

To read Mark Mix's letter, click here.

Last week, Big Labor's bought-and-paid-for politicians in both the U.S. House of Representatives and the U.S. Senate introduced the Card Check Forced Unionism Bill. This Big Labor-endorsed compulsory unionism scheme is intended to give federal government bureaucrats the unprecedented power to impose wages and working conditions, including forced union dues, on employees and employers after workers are herded into union collectives without even a secret ballot election.

Neal Catlett, former union president at a Whirlpool plant in Arkansas, spoke out against Big Labor's card check coercion:

Catlett, now retired from Whirlpool, opposes card check. He told The City Wire that he has seen plenty of “nonsense” among Whirlpool leaders and union leaders to know that anything other than a secret ballot will lead to intimidation, coercion and corruption on all sides.

“I strongly support secret ballots. Period. It doesn’t matter at what level, whether it is voting for a union or the president or your congressman,” Catlett said. “Your ideas should be personal as to if you want a union or don’t want a union.”

Card check is a dangerous encroachment on workers' rights in the workplace and opens up the door for a flood of union intimidation and coercion to force more workers into forced-union-dues-paying ranks. Carlett, discrediting any claim that the legislation protects workers based on his own personal experience as a union president, hit the nail on the head when he stated:

“Doing away with the secret ballot is not good for the unions. It’s not good for any business... Open voting creates an atmosphere of intimidation. It creates an atmosphere where people will use your opinion against you. I’ve seen the threats and I’ve actually seen the physical conflict, if you know what I mean, come from the business side and from the union side,” Catlett said. “I just don’t see how any process that is not private will protect the worker.”

Frankly, we suggest Cartlett hire a bodyguard immediately.  We're not kidding.  Union retribution can be swift and ugly.

The National Taxpayers Union’s blog (they’re a voluntary “union”) picks up on a Senate vote today to repeal Davis-Bacon wage mandates for bridges classified as “structurally deficient” or “functionally obsolete.”

Like “Project Labor Agreements,” Davis-Bacon effectively discriminates against nonunion workers and contractors, effectively blackballing them from working on government projects.

Not surprisingly, Big Labor’s allies in the Senate blocked the amendment that would have eliminated the onerous David-Bacon requirements… meaning that taxpayer dollars will continue to be diverted into bridge construction projects under union boss monopoly control.

The resulting featherbedding, extortionate work stoppages, and wasteful work rules will run up the costs. Meanwhile, union officials will rake in millions in forced union dues.

But that isn’t where the story ends. This map shows the Percentage of Bridges in each State that is classified as “Functionally Obsolete” or “Structurally Unsound” (the same classifications used in the blocked Senate Amendment):

It turns out that bridges in Right to Work States are far safer than those in states that allow union officials to force workers to pay union dues or be fired.

In fact bridges are 31% more likely to be functionally obsolete or structurally unsound in forced-unionism states (29.68% in Forced-Unionism States vs. 22.71% in Right to Work States).