It seems like each new week brings another setback for the National Labor Relations Board. This morning, the U.S. Court of Appeals for the Third Circuit issued a ruling invalidating President Obama’s recess appointments to the Board. The Third Circuit ruling was essentially the same as the conclusion reached by the Court of Appeals for the D.C. Circuit – the President’s recess appointment power was intended for times between sessions of Congress not simply short breaks taken during a session for lawmakers to return home to their states.

This week’s ruling follows on the heels of another defeat for the Board last week that invalidated its notice posting rule after nearly two years of legal wrangling. The U.S. Court of Appeals for the D.C. Circuit invalidated the notice posting rule as a result of a suit filed by the NAM in September of 2011.

Joe Trauger is vice president of human resources policy, National Association of Manufacturers.

Is it possible for an entire federal agency to be in denial? The National Labor Relations Board has been rebuked, rebuffed and reminded by the Courts that its powers are not limitless. Yet, the Board remains curiously silent about the ruling last week that served as a body-blow to an agency that just two years ago was sticking out its chest and poking its proverbial bully-finger at businesses.

The NLRB website still has a page dedicated to an out-of-date poster with no mention of the fact that it has been rejected by the Courts. It’s like returning to your parents’ home and finding they still haven’t torn down the New Kids on the Block poster in your sister’s room. It’s kind of cute, but also a little discomforting. It might be time for the Board to acknowledge its poster idea was ill-conceived and take it down once and for all.

Yesterday, the U.S. Court of Appeals for the DC Circuit announced its ruling in a case the NAM filed with regard to posting notices in the workplace. The legal questions raised by the Board issuing a rule proactively regulating virtually every employer in the country are unique in some ways and very simple in others.

During oral argument before the Court of Appeals, one judge asked the attorney representing the Board a basic question. What, if any, limits are there on the NLRB’s authority? The attorney quickly – and shockingly – responded that in the Board’s view there are no limits to their power. Yesterday, the Court issued a strong rebuke to that line of thinking and highlighted the shaky ground the NLRB is on with regard to its agenda.

In the four-page concurring opinion, Judges Henderson and Brown stated: “And the Congress, in enacting the NLRA, prescribed that the Board use reactive means to enforce its policies – namely, through an unfair labor practice proceeding initiated by a charging party or by resolving representations and election issues when so petitioned by a party.” (Emphasis in original) In concluding the concurring opinion, Judge Henderson wrote, “In sum, given the Act’s language and structure are manifestly remedial, I do not believe Congress intended to authorize a regulation so aggressively prophylactic as the posting rule.”

The NAM agrees, which is why the lawsuit was filed. The ruling and concurring opinion released yesterday were spot on – and now the Board has been put on the spot. Do they double-down and petition the Supreme Court or do they finally acknowledge there are limits to the power they wield?

This afternoon, the Administration petitioned the Supreme Court to take up the case regarding the recess appointments to the National Labor Relations Board (NLRB) in the Noel Canning case.  On January 25 the U.S. Circuit Court of Appeals for the D.C. Circuit definitively decided these appointments, made on January 4, 2012, were unconstitutional, thus bringing the NLRB down to one member and lacking a quorum to issue case decisions or issue rules.  Despite the strong and clear opinion by the D.C. Circuit, the NLRB continues to flaunt the Court’s ruling with two invalid recess appointees and only one member confirmed by the Senate. This situation is leaving those in the labor community to wonder if the cases being decided are valid and have to be followed.

It was expected the Administration would seek to have clarity and final say on this issue; however, it is curious that in a quick read of the petition, the Administration argues that the appointments are valid based on decades of precedent established by former Presidents, cites the British House of Commons Parliamentary practice from 1772, the Articles of Confederation from 1781 and the Constitutional Convention of 1787. It will now be up to the Supreme Court to settle this dispute once and for all.

Today, Congresswoman Martha Roby (R-AL) proposed creating more opportunities for a flexible workplace by introducing the “Working Families Flexibility Act.” The bill is simple and would provide private sector employees the same opportunity as their public sector counterparts – the ability to receive compensation time off rather than pay for the overtime hours they work.

Currently, if you work for a public sector entity, you can choose whether you would like to receive overtime pay or comp time, but surprisingly, if you work for a private company the law prohibits you from having this choice.  It seems that in this day and age when households are largely comprised of two parents who work full-time, it is only fair for all employees to have the option to receive a few hours of time to attend to needs outside of the workplace, whether it be to attend a child’s soccer game or parent-teacher conference, or to take an elderly parent to do their errands.

Too often pieces of legislation consist of hundreds, or even thousands of pages of complex text, so it is refreshing to have something straightforward and logical.  Just because you work for a private company you shouldn’t be prohibited from receiving the same workplace flexibilities you would have if you worked for a local or state government entity. After all, what’s good for the goose is good for the gander – right?

Today, President Obama announced his nomination of Mark Pearce for Chairman of the National Labor Relations Board and two other individuals to join current recess appointee/nominees Richard Griffin and Sharon Block. What this means is every slot on the NLRB currently has someone nominated, but only one has actually been confirmed by the Senate – Chairman Pearce, whose term expires in a few months. The new nominees, both Republicans, are Harry I. Johnson III and Phillip A. Miscimarra.

Mr. Johnson is a partner with Arent Fox in Los Angeles, CA and is a graduate of Harvard Law. Mr. Miscimarra is a partner at the law firm of Morgan Lewis in Chicago and holds a J.D. and M.B.A. from the University of
Pennsylvania.

Manufacturers understand and support the need for regulation – smart regulation. Smart regulation establishes the rules we all must follow and promotes better business practices. Too often lately, the Department of Labor is emblematic of the government agency clumsily encroaching on day-to-day operations, burdening manufacturers with higher business costs, unrealistic compliance demands and unnecessary regulations.

Forbes has a recent article that discusses an example of such overreach, discussing the Labor Department’s Office of Federal Contract Compliance Programs (OFCCP) recent efforts. As the article notes, under the right guidance, the OFCCP can be a tool for good. We agree, but therein lies the rub – if recent enforcement trends are considered the norm, it may be wishful thinking that the right guidance will magically appear.

Here at the NAM we are maintaining a watchful eye, urging smart regulations rather than the implementation of an agenda that predetermines who is in compliance and who is not. We’re hoping for the best, but as we have shown in the past, the NAM is ready to confront federal agencies that oversimplify, overstep and overreach.

Today, the NAM filed comments with the NLRB responding to the Board’s request to gather opinions on altering the way employees can challenge union dues’ expenditures. As you will recall, employees have every right to do according the U.S. Supreme Court decision in the Beck case. Last week’s blog about this case, Kent Hospital, referenced a “sneak attack” by the Board in making this change.  Reason being, the NLRB rarely asks for public comments prior to issuing a final decision in a case, so one has to wonder, why would they now?

The NLRB is not shy to overturn decades of precedent, change policy, or issue new rules, so it is likely they are going through this exercise simply to check the box that they took the public’s views into consideration – even though it is likely the three members have already made up their minds to create a presumption that unions are spending dues appropriately and not for political purposes. Why would the union ever be wrong and why should an employee dare to question the union on its expenditures?

The fact of the matter is what the Board will be doing is making it more difficult, perhaps impossible, for employees to call a union into question. Through this change, the Board will assure a union’s First Amendment right is more important than an employee, who has differing political views. Our comments strongly oppose the Board’s proposal. Employers and employees would well-advised to prepare for more of these “sneak attacks.”

The NLRB is up to its sneaky ways and they are hoping to slip another precedent shattering decision under the radar.  According to the U.S. Supreme Court in the Beck decision, employees can object to a portion of union dues’ expenditures if the dues are being used to fund political activity not related to collective bargaining or contract administration.  In a recent case, the United Nurses and Allied Professionals (Kent Hospital) and Jeanette Geary, case, however, the NLRB decided an employee, who objected to the union’s expenditures, did not deserve to have any verification showing proof how the union was spending its funds.

Even more alarming, however, is what the Board has planned next.  The NLRB proposes to go a step further to give the unions the upper hand by presuming the union is, indeed, spending all the dues correctly.  The effect would be the Board is telling employees they have to prove the union is spending money on lobbying and political activity with no means of independently verifying the union claims.

The NLRB asked for comments on this proposal and the NAM is responding forcefully by outlining how the Board’s new idea would unfairly and unnecessarily stack the deck against employees who have to pay dues, but disagree with the union politically.  Under the proposal any lobbying activity the union would engage in on Capitol Hill down to state and local seats of government would go unchecked. With an impossible standard to meet, employees’ rights under the Supreme Court would be muted.  And here I thought the NLRB was established to protect employees and employees’ rights—I guess that’s only true if you never disagree with the union.

Late last night the Federal Mediation & Conciliation Service announced that the ILA and USMX have reached a tentative agreement that would avoid a looming port strike beginning Feb 6. Manufacturers are hopeful that both sides will ratify the deal swiftly.

The threat of a strike has added significant costs to manufacturers operations as they were forced to make costly contingency plans to avoid supply chain disruptions. The result of a strike would likely cost our economy $1 billion a day. The tentative agreement is a positive step forward, and a signed agreement will give manufacturers certainty that their supply chains will not be disrupted on the East and Gulf Coasts.