Friday, January 25, 2013

This Is Huge--Obama's NLRB Appointments Are Invalid

A federal Court of Appeals, in fact, THE federal Court of Appeals, the one that sits in the District of Columbia, has rejected the Obama administration's recess appointments of NLRB members, finding the appointments an unconstitutional exercise of presidential executive power.

“The manipulation of official appointments had long been one of the American revolutionary generation’s greatest grievances against executive power, because the power of appointment to offices
was deemed the most insidious and powerful weapon of eighteenth century despotism.”

The decision is expected to be appealed, but as it stands now, it means that literally hundreds of NLRB decisions, including several that overturn decades of precedent and significantly damage employers, are now invalid.

Here's a quick listing of the key decisions affected by the Court of Appeals ruling today (courtesy of the WashPo):

a) The NLRB’s “ambush election” proposal that would shorten the timeframe for union elections to less than three weeks and limit the ability of employers’ lawyers to challenge NLRB decisions about who votes in the election;

b) Forcing employers in all industries . . . to bargain with “micro-unions” that represent narrow groups of workers within a company (even workers of a single job title);

c) Limiting employees’ rights to not fund political activities by preventing workers from viewing auditors reports of union spending and by classifying lobbying expenses as “representational activities”’;

d) Preventing employers from ending payroll dues deductions when a collective bargaining agreement expires;

e) Restricting employers ability to limit off-duty access to a workplace in order – thus expanding access for union organizers;

f) Narrowing the definition of supervisors (who cannot be unionized) to expand the number of employees unions can organize;

g) Expanding the definition of “concerted activity” to include public complaints about an employer or boss in social media;

h) Asserting NLRB jurisdiction over public charter schools;

i) Requiring employers to give unions copies of sworn witness statements in investigations into workplace misconduct, chilling the ability of employees to speak freely without fear of repercussions.

The court's decision is here. Expect the fallout from this decision to continue for at least a year.

UPDATE: And of course, the Board plans to ignore this decision.  My counsel to employers who were affected by any of the Board's decisions since the unconstitutional appointment of the members should follow the Board's example and ignore any efforts by the NLRB to enforce its rulings.

UPDATE 2:  No surprise, the administration indicates that it will appeal the Court of Appeals decision directly to the Supreme Court.  I note that the Board did not seek an en banc review of the decision; I'm guessing it believed such a review would be a losing cause, and only further strengthen the authority behind the original decision.

UPDATE 3:  The Fourth Circuit joins the invalidation party as reported here.

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