Blog Archives

Two Pro-business Groups File Legal Challenge to Obama’s Recess Appointments.

By Joe Wolverton, II for The New America.
Last Friday, two pro-business organizations filed motions in the U.S. District Court for the District of Columbia, challenging the constitutionality of President Barack Obama’s recess appointments. The two advocacy groups, the National Right to Work Foundation (NRWF) and the National Federation of Independent Business (NFIB), argue in their pleading that as the Senate was in session, the Constitution does not empower the President to make appointments without their advice and consent.
Both groups have previously filed suit in response to the mandate issued by the National Labor Relations Board that employers inform all employees of their right to unionize. The regulation requires that this notice be prominently displayed in all workplaces.
A press released issued by the NFIB revealed that lawyers for the organization have amended their original complaint in order to add additional arguments that the NLRB is not legally authorized to enforce the new rules. One of the reasons provided to prove this point mentions the illegality of the President’s recent recess appointments.
With regard to the assertion that the new regulations cannot be legally enforced, the Washington Postquotes Mark Mix, president of the NRWF, as saying, “The rule can’t be implemented and enforced without a functioning board. We believe the validity of these appointments is in question.”
The President’s action was a surprise and terrible disappointment to small-business owners throughout the country who have suffered under the unabashedly pro-union rule-makings handed down by the NLRB. These alleged recess appointments are a brazen circumvention of the Congressional appointment process and raise serious legal concerns that cannot be ignored. The outrage amongst members of the small-business community is severe, and NFIB takes this action today to ensure that its members are protected from unconstitutional acts that exacerbate the NLRB’s devolution from a neutral arbiter between labor and employers to a pro-union government agency.
The impetus for this rash of litigation was President Obama’s recent disregard of Congress and the Constitution in unilaterally filling seats on the National Labor Relations Board and appointing former Ohio Attorney General Richard Cordray to be the head of the Consumer Financial Protection Bureau.
In defense of his controversial appointments, President Obama insists that they were made in complete compliance with the Constitution’s grant of such power to the President in Article II. 

Is the President’s interpretation of Article II correct?
To answer that question, one must first look to the text being cited as a justification for the appointments.

 Article II, Section 2 of the U.S. Constitution states:
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
The plain language of that clause authorizes recess appointments. If the Senate is in recess, then the President is within the sphere of his constitutionally enumerated powers to fill a vacancy that will be valid until the end of the next congressional session.
An additional analysis of the black letter of Article II makes it clear that the Senate must already be in recess in order for an appointment made in its absence to be valid.
There is no provision in the Constitution even hinting at the right of the President to use trickery to create artificial breaks in congressional sessions in order to forcibly impose his will in defiance of express senatorial opposition to it.
Not surprisingly, the Obama Department of Justice (DOJ) defended the President’s appointments. In a memo dated January 6, DOJ officials cited various scholarly and bureaucratic interpretations of the so-called Recess Appointment Clause of Article II in order to buttress their opinion:
This Office has consistently advised that “a recess during a session of the Senate, at least if it is sufficient length, can be a ‘Recess’ within the meaning of the Recess Appointments Clause” during which the President may exercise his power to fill vacant offices.
Although the Senate will have held pro forma sessions regularly from January 3 through January 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner that would preclude the President from determining that the Senate remains unavailable throughout to “‘receive communications from the President or participate as a body in making appointments.’
Thus, the President has the authority under the Recess Appointments Clause to make appointments during this period.
In summary, the Department of Justice memo argues that the business conducted by the Senate between January 3 and 23 was conducted pro forma and thus does not qualify as an interruption of the recess begun by the vote to adjourn taken on December 17, 2011.
This argument was echoed in a piece recently published by David Arkush, director of Public Citizen’s Congress Watch division.
In his paper, Arkush posits two constitutional pretexts allowing the President to place someone in office whose nomination has already been blocked by the Senate.


First, Arkush insists that Article II, Section 2 of the U.S. Constitution authorizes the President to force the House and Senate to adjourn. Then, once Congress has obeyed that presidential mandate, the President may then lawfully make a “recess appointment.”

 Next, Arkush argues that the 20th Amendment orders Congress to assemble at least once a year, with each session beginning on January 3. Arkush says that in order to be able to start a session on January 3, Congress would have to have ended a previous session, thus leaving a gap between the last session and the current session during which the President may squeeze in and make “recess appointments,” obviating the requirement of senatorial advice and consent.
The Founders felt otherwise. In Federalist, No. 76, Alexander Hamilton explains that the Constitution “requires” the cooperation of the Senate in appointments in order to “check” the President and “to prevent the appointment of unfit characters”; and that “the necessity of its [the Senate’s] co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate [the President].”
Addressing the issues underlying the current constitutional crisis specifically, in Federalist, No. 68, Alexander Hamilton writes of the Recess Appointment Clause:
The ordinary power of appointment is confided to the president and senate jointly, and can therefore only be exercised during the session of the senate; but, as it would have been improper to oblige this body to be continually in session for the appointment of officers; and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the president, singly, to make temporary appointments “during the recess of the senate, by granting commissions which should expire at the end of their next session.
What, then, was the role the Senate was designed to play in the nomination and appointment process? Again, we turn to the Federalist Papers and Alexander Hamilton:
To what purpose then require the co-operation of the senate? I answer, that the necessity of their concurrence would have a powerful, though in general, a silent operation. It would be an excellent check upon a spirit of favouritism in the president, and would tend greatly to prevent the appointment of unfit characters from state prejudice, from family connexion, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.
Finally, a quote from an article published by the San Francisco Chronicle online hints that while the President understands that the Senate has a constitutional duty to check his power, he will not allow the exercise of such to impede the growth of government:
Administration officials have said Obama made the appointments because Senate Republicans have been unfairly blocking Senate confirmation of nominees as a way to limit the power of agencies they oppose.

NLRB ‘Faces’ 100 New Facebook Complaints.

In the age of instant tweets and impulsive Facebook posts, some companies are still trying to figure out how they can limit what their employees say about work online without running afoul of the law.

Confusion about what workers can or can’t post has led to a surge of more than 100 complaints at the National Labor Relations Board — most within the past year — and created uncertainty for businesses about how far their social media policies can go.

“Employers are struggling to figure out what the right policies are and what they should do when these cases arise,” said Michael Eastman, labor law policy director at the U.S. Chamber of Commerce.

In one case, a Chicago-area car salesman was fired after going on Facebook to complain that his BMW dealership served overcooked hot dogs, stale buns and other cheap food instead of nicer fare at an event to roll out a posh new car model.

The NLRB’s enforcement office found the comments were legally protected because the salesman was expressing concerns about the terms and conditions of his job, frustrations he had earlier shared in person with other employees.

But the board’s attorneys reached the opposite conclusion in the case of a Wal-Mart employee who went on Facebook to complain about management “tyranny” and used an off-color Spanish word to refer to a female assistant manager. The worker was suspended for one day and disqualified from seeking promotion for a year.

The board said the postings were “an individual gripe” rather than an effort to discuss work conditions with co-workers and declined to take action against the retailer.

Those cases are among 14 investigations the board’s acting general counsel, Lafe Solomon, discussed in a lengthy report last month on the rise in social media cases. Solomon says federal law permits employees to talk with co-workers about their jobs and working conditions without reprisal — whether that conversation takes place around the water cooler or on Facebook or Twitter.

“Most of the social media policies that we’ve been presented are very, very overbroad,” Solomon said in an interview. “They say you can’t disparage or criticize the company in any way on social media, and that is not true under the law.”

The number of cases spiked last year after the board sided with a Connecticut woman fired from an ambulance company after she went on Facebook to criticize her boss. That case settled earlier this year, with the company agreeing to change its blogging and Internet policy that had banned workers from discussing the company over the Internet.

The National Labor Relations Act protects both union and nonunion workers when they engage in “protected concerted activity” — coming together to discuss working conditions. But when online comments might be seen by hundreds or thousands of eyeballs, companies are concerned about the effect of disparaging remarks.

Doreen Davis, a management-side labor lawyer based in Philadelphia, said many of her corporate clients are often “surprised and upset” when they learn they can’t simply terminate employees for talking about work online.

“All of us on the management side are being inundated with calls and inquiries from clients about this,” Davis said. “A lot of companies want their social media policies reviewed or they want to establish one for the first time.”

But the NLRB’s Solomon also warns workers that not everything they write on Facebook or Twitter will be permissible under the law just because it discusses their job.

“A lot of Facebook, by its very nature, starts out as mere griping,” Solomon said. “We need some evidence either before, during or after that you are looking to your fellow employees to engage in some sort of group action.”

In one case, an employee at an Indiana emergency transportation and fire protection company was fired after writing on the Facebook wall of her U.S. senator, Republican Dick Lugar, to complain that her company skimped on wages and that its cheap service compromised the quality of care.

The NLRB’s enforcement office declined to take up her case, saying that the employee didn’t discuss her complaints with other workers or show any attempt to take employee complaints to management. She may have been trying to make a public official aware of problems with emergency medical services in Indiana, but board attorneys said that wasn’t enough to protect her under the law.

While there are more than 100 cases pending before the board, only one has actually led to a formal ruling. Earlier this month, an administrative law judge at the agency found that a Buffalo, N.Y., nonprofit group illegally fired five workers after they posted Facebook comments complaining about workload and staffing issues.

The judge ordered the group, Hispanics United of Buffalo, to reinstate the five employees and award them back pay.

The Chamber of Commerce’s Eastman said it’s too early to criticize how the board is interpreting the law, but he wants to see what happens in closer cases where an employee goes “over the top” with criticism of a supervisor of employer.

“Where will the board draw the line between concerted activity and an employer’s legitimate non-disparagement policy?” Eastman said.  Source:  CBS News.

HR Challenge: Workers Complain About Amazon Wharehouse Jobs.

ALLENTOWN, Pa. — Elmer Goris spent a year working in Amazon.com‘s warehouse in Pennsylvania’s LeHigh Valley, where books, CDs and various other products are packed and shipped to customers who order from the world’s largest online retailer.

The 34-year-old Allentown resident, who has worked in warehouses for more than 10 years, said he quit in July because he was frustrated with the unbearable working conditions and mandatory overtime.

During the summer heat wave, he got lightheaded, he said, and his legs cramped, symptoms he never experienced in previous warehouse jobs. Goris said he also saw a co-worker pass out at the water fountain and paramedics bringing people out of the warehouse in wheelchairs and on stretchers.

“I never felt like passing out in a warehouse and I never felt treated like a piece of crap in any other warehouse,” Goris said.

His complaints are not unique, and you can read the rest by Spencer Soper at The Morning Call in The Seattle Times here.

%d bloggers like this: