The Wall Street Journal reports, “the legality of the appointments is being challenged in the U.S. District Court for the Eastern District of New York, where lawyers for the housing complex owner are challenging an injunction sought by the NLRB to end a lockout of members of the Service Employees International Union following a pay dispute. NLRB Acting General Counsel Lafe Solomon filed for the injunction last week, after the current board members authorized him to do so….The first legal challenge to Mr. Obama’s recess appointments came last month, when three groups—the National Federation of Independent Businesses, the National Right to Work Foundation and the Coalition for a Democratic Workplace—asked a judge to rule on whether the appointments to the NLRB violate the U.S. Constitution.”

President Obama violated the constitution precedent when he made “recess” appointments to the NLRB while Congress was in session.  It is imperative that the courts stand up to this power grab and we are working to ensure that happens.

Politico reports:

The Kentucky Republican appears to be the first sitting senator to legally object to the Jan. 4 appointments that drew fire from congressional Republicans, who say the president overstepped constitutional boundaries by installing three members to the labor board and Richard Cordray to lead the Consumer Financial Protection Bureau.

“With the recent recess appointments, President Obama has circumvented our Constitution and showed complete disregard for the separation of powers,” Paul said in a statement Tuesday. “He has demonstrated once again that he is willing to treat the office of the presidency like a dictatorship.”

Paul said he plans to file a friend-of-the-court brief backing legal action by the National Federation for Independent Business and the National Right to Work Legal Defense Foundation. The groups filed court claims on Jan. 13 arguing that the NLRB appointments are unconstitutional.

From Heritage:

Richard Griffin, the former general counsel for the International Union of Operating Engineers, will receive regular payments under two different IUOE pension plans. The payment amounts are not listed on the disclosure form. He will also receive a single lump sum payment equal to three weeks of salary (one week for each of the three years since he enrolled in the plan). Griffin’s annual salary as the IUOE’s general counsel was $376,778, according to the disclosure form.

In his capacity as general counsel, we have noted, Griffin advanced policies that helped insulate corrupt union leaders from challenge.

Both Griffin and Sharon Block, who was also illegally appointed to the NLRB, filed ethics agreements with the U.S. Office of Government Ethics stating that they will not, in their capacity as NLRB members, participate in matters that might affect their personal finances. Assuming that agreement is adhered to, Griffin’s continued compensation by the IUOE is licit.

Union organizers verbally abuse Marriott employees and spy on workers in changing rooms after striking backroom deal with company officials

New York, NY (January 19, 2012) – A group of New York City Marriott (NYSE: MAR) employees – acting on behalf of their coworkers – have filed federal charges against the company and a local union for workplace intimidation and harassment.

The three SoHo Marriott employees filed the charges at the National Labor Relations Board (NLRB) with free legal assistance from National Right to Work Foundation attorneys.

New York Hotel & Motel Trades Council Local 6 union organizers entered into a backroom deal with company officials that allows union organizers unfettered access to the employees in order to install a union in the workplace.

Abusing this privilege, union organizers are attempting to browbeat the workers into supporting the union through a prolonged campaign of intimidation and harassment.  Meanwhile, company officials deny workers’ attempts to meet on company grounds.

Union officials have used video cameras in employee changing rooms, accessed employee lockers and handled employees’ personal possessions, and have even resorted to verbal abuse.  Union officials even took photographs of a female employee without her consent while she was changing her uniform in an employee changing room.

Moreover, company and union officials are retaliating against workers who dare to exercise their right to refrain from union affiliation.  For example, at least three workers were illegally interrogated and disciplined by company officials at the behest of union bosses.

In response, the workers unanimously signed a petition showing that they do not support the union hierarchy’s presence in the workplace.

“Union and company officials have colluded to force the union bosses’ so-called ‘representation’ on these workers,” said Mark Mix, President of National Right to Work.  “Marriott workers are being subjected to a vicious campaign of intimidation – including sexual harassment – at the hands of forced-dues hungry union bosses and with the approval of weak-kneed company officials.”

“New York desperately needs a Right to Work law to protect workers from forced unionism abuses like this in the future,” added Mix.

The National Right to Work Legal Defense Foundation is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses.  The Foundation, which can be contacted toll-free at 1-800-336-3600, is assisting thousands of employees in nearly 200 cases nationwide. Its web address is www.nrtw.org.

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.

“President Barack Obama has already shown time and again that he is willing to abuse his executive authority to force more workers into union-dues-paying ranks,” said Mark Mix, President of the National Right to Work Foundation. “Now Obama’s executive abuse jeopardizes the constitutional balance our country holds very dear, all in the name of paying back his Big Labor benefactors.”

The implementation of the NLRB’s new posting rules, originally supposed to be in August of last year, has been twice delayed due to the legal challenge in the Foundation’s case. The rules are currently scheduled to be effective on April 30, 2012.

The National Association of Manufacturers (NAM) is also a party in the case, but is not party to the Foundation’s motion.

The National Right to Work Legal Defense Foundation is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses. The Foundation, which can be contacted toll-free at 1-800-336-3600, is assisting thousands of employees in nearly 200 cases nationwide. Its web address is www.nrtw.org.

Roger Pilon, a constitutional scholar from the CATO Institute, makes a compelling case that President Obama’s outrageous appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau are unconstitutional:

All of Obama’s appointments yesterday are illegal under the Constitution. And, in addition, as too little noted by the media, his appointment of Richard Cordray to head the Consumer Financial Protection Bureau (CFPB) is legally futile. Under the plain language of the Dodd-Frank Act that created the CFPB, Cordray will have no authority whatsoever.

Yesterday, Professors John Yoo and Richard Epstein, writing separately, made it crystal clear that the president, under Article II, section 2, may make temporary recess appointments, but only when the Senate is in recess. Add in Article I, section 5, and it’s plain that the Senate is presently not in recess, just as it wasn’t under Senate Democrats when George W. Bush wanted to make recess appointments. The difference here is that Bush respected those constitutional provisions while Obama — never a constitutional law professor but only a part-time instructor – ignores them as politically inconvenient. Attempts by Obama’s apologists to say the Senate is not in session are pure sophistry and, in the case of Harry Reid, rank hypocrisy, as this morning’s Wall Street Journal brings out.

But clear beyond the slightest doubt is the language of the statute (itself unconstitutional on any number of grounds not relevant here). As my colleague Mark Calabria wrote yesterday, “authorities under the Act remain with the Treasury Secretary until the Director is ‘confirmed by the Senate.’”  A recess appointment, even if it were constitutional, is not a Senate confirmation. There is simply no wiggle room in that language that gives Cordray any authority, as litigation will soon make plain.

So what is this? It’s politics — Chicago politics, plain and simple. If any doubt remained, three years into his presidency, that Obama is a master demagogue, with class warfare as his central tool, this incident should dispel it.

From the National Right to Work Legal Defense Foundation:

Worker Rights Advocate Blasts Obama’s Unprecedented Recess Appointments to the NLRB

The President’s legally dubious NLRB recess appointments pave the way for another year of forced-unionism giveaways

Washington, DC (January 4, 2012) – Mark Mix, President of the National Right to Work Legal Defense Foundation, issued the following statement in response to President Obama’s unprecedented NLRB recess appointments:

“Obama’s recess appointments to the NLRB, despite there being no formal recess of Congress, show just how much this Administration is in the pocket of Big Labor. In the last two years the Obama Labor Board has repeatedly enacted one power grab after another on behalf of union bosses, to the detriment of the rights of individual employees – especially those who wish to refrain from union activities. The President’s legally dubious NLRB recess appointments pave the way for another year of forced-unionism giveaways.

“Union bosses know their coercive agenda is overwhelmingly unpopular with the American people, which is why they’ve turned to unelected administrative agencies like the NLRB to push through much of what they cannot get through Congress. That’s what makes these appointments all the more offensive in the face of Congress affirmatively taking action to block recess nominations.”

National Right to Work Foundation staff attorneys are already exploring possible legal challenges to these unprecedented recess appointments in defiance of Congress.

This power grab by a desperate president gives Big Labor control over the NLRB, which was supposedly established to referee labor relations disputes.  Obama’s actions will make Big Labor the Harlem Trotters of labor disputes. Also, it will create a legal battle with Republicans in congress.  A battle the former constitutional law professor seems to seek.

From the Hill:

The recess appointments President Obama announced Wednesday are “almost certain” to be challenged in court … The recess appointments broke with legal precedent, as they while the Senate is holding regular pro forma sessions. Republicans insist the Senate has not been in recess thanks to the seconds-long sessions held every few days, but White House attorneys determined the procedural move is a gimmick that can be ignored by the president.

House Speaker John Boehner (R-Ohio) blasted the move as an “unprecedented power grab” and said he expects “the courts will find the appointment to be illegitimate.”

The gambit puts the bureau in “uncertain legal territory,” according to Senate Minority Leader Mitch McConnell (R-Ky.).

From the Washington Times:

Obama defies Congress with ‘recess’ picks; Nominations could provoke constitutional fight

Pushing the limits of his recess appointment powers, President Obama on Wednesday bypassed the Senate to install three members of the National Labor Relations Board and a director for the controversial new Consumer Financial Protection Bureau – moves Republicans said amounted to unconstitutional power grabs

Big Labor applauds, from In These Times:

Obama Makes Recess Appointments to NLRB. Is It Enough for AFL-CIO Endorsement?

Today, President Obama made three recess appointments to the National Labor Relations Board (NLRB)—Democrats Sharon Block and Richard Griffin, as well as Republican Terry Flynn. Without the appointments, the federal agency, which mediate labor disputes and oversees union elections, wouldn’t have had a quorum to issue valid rulings. (He also made a much more high-profile appointment of Richard Corday to head the Consumer Financial Protection Bureau (CFPB) in order to make that regulator functional as well.)

With the recess appointments, the board will be able to make key decisions that affect American workers.

The speed in making the appointments may be a move by the White House to gain the support of the AFL-CIO, which has yet to endorse Obama, unlike other major unions like AFSCME, NEA, UFCW and SEIU. It’s unclear as well if the AFL-CIO’s delay in endorsing Obama, or AFL-CIO President Richard Trumka’s recent call for greater political independence for organized labor played any role in pressuring the White House to quickly make the recess appointments to both the CFPB and NLRB.

The move may give the AFL-CIO necessary cover to endorse President Obama, and offer active support on the ground during the election season.

But the labor federation, and other unions that have yet to endorse Obama, may be looking to see if the president can pass several other tests this year …State legislators in Indiana are planning to bring right-to-work legislation to a vote in the Indiana legislature possibly as early as this week. It’s unclear if President Obama is going to make any public statement about the legislation, which organized labor strongly opposes, in this key battleground state

Late last month, when House Republicans floated the idea of a federal pay freeze as part of a temporary deal to extend the payroll tax cuts, Democratic Senators strongly objected. However, the White House did not object publicly to the freeze being in the deal.

“Federal employees are working with severely limited resources,” National Treasury Employees Union President Colleen Kelley wrote in a letter to Congress today. “To ask them to bear such a disproportionate additional burden is unfair and unacceptable.”

(Source:  November-December 2011 National Right to Work Committee Newsletter)

This April 20, Acting National Labor Relations Board (NLRB) General Counsel Lafe Solomon ignited a public-policy firestorm by filing a complaint against Boeing for initiating a second Dreamliner 787 aircraft production line in Right to Work South Carolina.

In several public statements, Boeing executives had made no bones about the fact that their decision to expand in a Right to Work state was prompted largely by their desire to avoid or at least mitigate multi-billion-dollar revenue losses stemming from disruptive strikes.

Agreeing with International Association of Machinists (IAM/AFL-CIO) union kingpins who had repeatedly ordered employees at Boeing’s west coast facilities out on strike, Mr. Solomon claimed these statements showed Boeing was motivated by “anti-union animus.” Consequently, the South Carolina expansion was illegal, declared Mr. Solomon.

Mr. Solomon’s complaint asked an NLRB administrative law judge to stop Boeing’s South Carolina production.

Former Clinton-Appointed NLRB Chairman: Boeing Complaint Didn’t ‘Make Sense’

Lafe Solomon was installed by President Barack Obama, without the U.S. Senate’s advice or consent, as the NLRB’s top lawyer in 2010. From the beginning, Mr. Solomon’s case against Boeing was highly controversial.

In addition to the overwhelming majority of Americans who support the Right to Work principle, even some well-informed apologists for compulsory unionism openly doubted whether Mr. Solomon really understands federal labor law.

For example, William Gould, the ex-union lawyer who was the Bill Clinton-appointed chairman of the NLRB from 1994 to 1998, summed up the case against Boeing this way:

“The general counsel is trying to equate an employer’s concern with strikes that disrupt production and make it difficult to make deadlines — he’s trying to equate that with hostility toward trade unionism. I don’t think that makes sense.”

In response to such criticism, Mr. Solomon protested that, as he saw it, the evidence Boeing had violated the law was clear-cut. “I feel that I really had no choice [but to file the complaint],” he told a New York Times reporter in late April.

Mr. Solomon appeared then to be merely a tunnel-visioned supporter of compulsory unionism. But now it seems that, besides being an ideologue, he is a fraud.

Mr. Solomon Made a Deal With Boeing, Then Broke It

Internal NLRB documents obtained by the educational group Judicial Watch and made public in November show that early this year Mr. Solomon told Boeing he would not target the company and its South Carolina employees if executives made a multi-year pledge not to lay off any unionized employees working on the 787.

The NLRB’s e-mail communications also show that, just as Mr. Solomon specified, Boeing quickly agreed not to lay off any IAM-controlled employees involved in Dreamliner production prior to the expiration of its existing contract with the IAM hierarchy.

But a few weeks later, Mr. Solomon filed his complaint against Boeing anyway, apparently because IAM agents representing union international President Tom Buffenbarger told him they wanted to extract more from the company than a no lay-off pledge.

“The record shows that, far from believing he ‘had’ to file a case against Boeing, as he claimed in public time and again, as recently as this March Mr. Solomon wasn’t planning to file one,” said Greg Mourad, vice president of the National Right to Work Committee.

“And the obvious reason he finally decided to go ahead with the case after all wasn’t any purported wrongdoing by the company. Mr. Solomon did what IAM bosses told him to.”

Mr. Mourad continued: “National Right to Work and other like-minded groups quickly exposed the anti-employee and anti-business essence of the Boeing case to the American people. Even Mr. Solomon himself, in another internal NLRB e-mail recently made public, came to quip cynically that the case had ‘screwed up the U.S. economy.’

“Finally, in late November, IAM chiefs, acting without the NLRB’s involvement, cut a deal with Boeing and publicly indicated they wanted the case to go away.

“Now that the IAM puppeteers are finished, the NLRB action against Boeing will likely soon end quietly.

“That’s good news for Right to Work supporters, but unfortunately the fork-tongued Big Labor stooge who brought the case remains entrenched as the powerful NLRB’s top lawyer. That means the next attack on Right to Work can’t be far off.”

(Source:  November-December 2011 National Right to Work Committee Newsletter)

In his writings for academic and “labor studies” journals over the years, union lawyer Craig Becker has repeatedly bemoaned the fact that U.S. labor law “does not,” as he once bluntly explained, “require employees in a plant to select a bargaining agent, if they do not want to.”

Employees’ only choice, Mr. Becker has suggested time and again, should be over which set of union officials get “exclusive” (monopoly) bargaining power to negotiate their wages, benefits, and work rules.

Thanks to President Barack Obama, Mr. Becker is in a position as 2011 winds down to begin implementing his extremist vision of what federal labor policy should be.

In March 2010, Mr. Obama did the bidding of the union hierarchy by “recess” appointing Mr. Becker to the powerful National Labor Relations Board (NLRB).

Mr. Becker and Chairman Mark Pearce, another ex-union lawyer installed on the NLRB by Mr. Obama, now constitute a radical Big Labor majority on a rump, three-member NLRB. (Two of the board’s five seats are currently vacant.)

And late this November Mr. Pearce and Mr. Becker okayed changes to the current procedures for NLRB certification of unions that will, in practice, significantly undermine workers’ right to choose against monopolistic union representation.

The Obama NLRB originally planned to go even further to gut workers’ “choice to remain unrepresented” — a choice Mr. Becker has indicated he doesn’t think should be legally protected at all. But intense public opposition, mobilized by the National Right to Work Committee and other allied groups, evidently influenced the NLRB to temper its haste somewhat.

Employers May Soon Be Forced To Hand Employee Phone Numbers, E-Mail Addresses to Union Dons

The revised proposal advanced by the Pearce-Becker team over the vigorous opposition of the third NLRB member, Brian Hayes, would sharply reduce the current median time frame of 38 days between the filing of a union “representation petition” and the conduct of a union election.

The effect of such a change, as former NLRB member and Right to Work supporter Peter Kirsanow has put it, will be to “utterly and completely deprive employers of the ability to communicate vital information to their employees regarding their rights and the effects of unionization.”

Of course, once employers are denied enough time to make their case, employees will ipso facto be denied the opportunity to hear both sides of the story before voting on unionization.

“Apologists for President Obama’s NLRB brazenly claim that the ‘ambush’ election scheme it is now implementing step by step represents only a few modest changes to current practice,” noted Committee President Mark Mix.

“But this is nothing other than an underhanded means of realizing the very objective Craig Becker lauded in his published writings before his NLRB appointment: Workers’ ‘choice to remain unrepresented’ would be rendered almost meaningless.

“And the ‘ambush’ elections just rubber-stamped by the NLRB are only the beginning. The NLRB is still considering a host of other harmful proposals.

“These include new rules mandating that the employer hand over employee phone numbers and e-mail addresses to union organizers at the outset of each ‘ambush’ election campaign.”

Committee Will Consider ‘All Appropriate Means’ to Protect Independent Employees

Mr. Mix vowed that the Committee would consider “all appropriate means” to protect independent employees from the Obama NLRB.

“Unfortunately, as long as Barack Obama remains President and retains his veto power, it will be difficult to rein in the NLRB,” he acknowledged.

“But at the very least, Right to Work supporters on Capitol Hill can and must prevent Mr. Obama from placing another union stooge on the NLRB to replace Mr. Becker once his ‘recess’ appointment ends this winter.”

November-December 2011 issue headlines:

Capitol Hill Support For Right to Work Growing — More Senators, Representatives Cosponsor Compulsory-Dues Repeal

Obama Bureaucrats Bolster Monopolistic Unionism — Labor Board Chipping Away at ‘Choice to Remain Unrepresented’

United Way Chief: ‘Please Support Your AFL-CIO’ — Brian Gallagher Prods Charity Workers to Assist Union Lobbyists

Lafe Solomon ‘Did What IAM Bosses Told Him To’ — E-mails Reveal Why Top NLRB Lawyer ‘Screwed up the U.S. Economy’

College Graduates Flock to Right to Work States — States Seeking a ‘Brain Gain’ Should Bar Compulsory Union Dues

All in All, ‘a Hopeful Year For America’ — Big Labor Bosses Fume as Benefits of Wisconsin Reform Spread

The South Carolina Post and Courier shows how workers are often treated as pawn in labor disputes:

Don’t get Glenn Taubman wrong:  He’s glad the National Labor Relations Board union-busting case against Boeing Co. is over.

It’s how it ended that bothers him.

Taubman, a staff attorney at the National Right to Work Legal Defense Foundation, represents the three local Boeing employees who won limited participation in the controversial case earlier this year. He said they received a copy of every legal paper filed over the summer and fall, yet they were not invited to participate in the concluding conference call among the varied parties.

During the Dec. 8 call, Administrative Law Judge Clifford Anderson considered whether he needed to hear from the attorney for Dennis Murray,Cynthia Ramaker and Meredith Going Sr. Lawyers from both Boeing and the International Association of Machinists discouraged the idea.

Wrapping up the call, Anderson said, “Even though I have finessed them here, they need to be informed,” according to the call transcript.

A miffed Taubman responded last week: “We’re certainly happy that the case is over, and that there appears to be protection for our clients and the Charleston workers, but the idea that they were excluded in this way shows how rigged the whole process was.”

He said the way the case ended — with a union contract extension in Washington somehow solving the South Carolina claims and then the 24-minute chat between the judge and the lawyers — was “totally bizarre.”

“They haven’t heard the last of it,” he said. “We’re investigating our options of how to proceed in light of what we feel was a failing of the NLRB process.

From The National Right To Work Legal Defense Foundation:

Washington, DC (December 19, 2011) – The National Labor Relations Board (NLRB), the federal agency charged with administering most private sector labor law, has upheld an Administrative Law Judge’s decision awarding over $55,000 in back pay to a television employee who was discriminated against by Teamster officials. The Board’s ruling stems from unfair labor practice charges filed by Thomas Coghill, an ABC driver who received free legal assistance from National Right to Work Foundation staff attorneys.

Teamster Local 509 union officials are party to a monopoly bargaining agreement with ABC in Charleston, South Carolina that forces workers to go through the union’s hiring hall to get a job with the studio. Because Local 509 union members were working on other sets when production of Army Wives started, Thomas Coghill – a member of a different Teamster local – was hired as a makeup driver during the show’s first two seasons.

As more Local 509 members became available to work on Army Wives, a dispute arose among various Teamster officials over who should be eligible to work on the program. Coghill was eventually removed from Local 509’s “Movie Referral List” because he did not belong to Local 509 while its members continued to receive preferential access to jobs on the set of Army Wives.

Coghill responded to Local 509’s biased hiring procedure by filing unfair labor practice charges against the union on the grounds that federal labor law prohibits union officials from discriminating against nonunion employees. National Right to Work Foundation staff attorneys subsequently persuaded an Administrative Law Judge to award Coghill over $55,000 in back pay. Union lawyers unsuccessfully appealed the ruling to the NLRB, which has now affirmed the judge’s decision in its entirety.

“Despite a tough economy, Teamster bosses had no qualms about discriminating against certain employees because they didn’t belong to the ‘right’ union” said Patrick Semmens, legal information director for the National Right to Work Foundation. “It should not have been necessary to resort to drawn-out litigation to hold Teamster officials accountable, but we’re pleased that Coghill will finally receive the back pay union bosses tried to deny him.”

“Until Big Labor’s many government-granted special powers are repealed, this type of abuse will continue as union bosses intimidate and retaliate against workers who refuse to toe the union line,” concluded Semmens.

The Obama administration was saved from yet another pre-election embarrassment late last week when the National Labor Relations Board dropped its suit against Boeing’s efforts to build an aircraft manufacturing plant in South Carolina.

Yes, it couldn’t get much crazier than in the middle of a recession when this administration still wants to pour billions of tax dollars into creating jobs — at least public sector ones — that a federal agency would hold one of the nation’s leading employers hostage. But that’s exactly what was going on when the NLRB halted Boeing’s efforts in response to a case brought by the Machinists union.

The union had charged that Boeing wanted to open the new plant in South Carolina in retaliation for past union strikes at its Washington state plant. And since the Obama-era NLRB is a wholly-owned toady of organized labor, it accepted at face value the union’s allegations.

Of course, Boeing in the end was held hostage until it ransomed its North Charleston plant by approving a new four-year contract with the Machinists in Washington state where the firm also promised to build a new version of the 737 aircraft. And, not surprisingly, the Machinists dropped their bogus charges.

And that’s really at the heart about how this particular cast of characters at the NLRB operates.

Lafe Solomon, acting general counsel for the board, said he always preferred a settlement. In fact about 90 percent of the cases brought to the board are resolved through settlement — that is if you call it a “settlement” when, faced with this kind of relentless federal assault, a private firm finally cries “uncle.”

Anywhere else it would be called thuggery. But under this administration — with its every move favoring its organized union base — it’s called justice.

What a sham, or scam, or choose a synonym. On Wednesday, the International Association of Machinists approved a new contract with Boeing in which the company agreed to make its 737 Max jet with union labor in Washington state. Yesterday, after getting the machinist all-clear, the National Labor Relations Board (NLRB) dropped its lawsuit against Boeing’s investment in South Carolina.

Has there ever been a more blatant case of a supposedly independent agency siding with a union over management in collective bargaining?

Boeing says the new contract wasn’t tied directly to a settlement of the NLRB complaint, and that it always made sense to build the 737 Max in Renton, Washington because its work force has experience on the current 737 and offers natural efficiencies.

But it’s hard to resist the conclusion that Boeing felt obliged to make the agreement to save its more than $1 billion investment in South Carolina, where it is building 787s. Boeing might have won a legal battle in the end, but first it would have to run through an administrative law judge, then the politicized and Obama-stacked NLRB, and only then would it get to an appellate court. Meanwhile, its investment was in jeopardy and its legal bill was rising.

As for the NLRB, its decision to drop the case so quickly after the machinists cut their deal exposes how politically motivated the Boeing suit was. The NLRB is supposed to be a fair-minded referee in labor disputes, making sure neither side breaks the law. But the board put its fist squarely on the union side to make Boeing pay a price for moving one of its 787 assembly lines to a right-to-work state, to make sure Boeing never did that again, and to demonstrate to any other unionized company that its investment is at risk if it makes the same decision.

By dropping the case, the Obama team at the NLRB can claim it delivered those lessons without ever having to contest them in court. Oh, and Democrats running for Senate in right-to-work states, like Tim Kaine in Virginia, are spared from having to endorse a union position that is unpopular because it costs their states jobs.

The damage here goes well beyond Boeing, which presumably understands the tradeoffs. The NLRB is exposed as one more federal agency that can’t be trusted to make honest decisions. The ability of the 21 right-to-work states, which passed such laws under the 1947 Taft-Hartley Act, to attract businesses from pro-union states will also be eroded. The AFL-CIO may cheer that message, but in practice the result is likely to be that more companies simply send jobs overseas where there’s no NLRB. Congratulations.

What if there were emails showing Supreme Court Justice Sonia Sotomayor coordinating with Attorney General Eric Holder and White House press secretary Robert Gibbs on how the Obama administration should fight judicial challenges to Obamacare?

At a bare minimum, Justice Sotomayor would have to recuse herself from the case, she might be impeached, and Holder would face serious ethics questions as well. But such emails do not exist … concerning Obamacare. When it comes to the National Labor Relations Board suit against Boeing, that is a different story.

Cause of Action, a government accountability nonprofit, has obtained emails through a Freedom of Information Act request showing then-NLRB Chairwoman Wilma Liebman, NLRB Acting General Counsel Lafe Solomon and NLRB Public Affairs Director Nancy Cleeland coordinating the board’s response to its own decision to sue Boeing for opening a factory in the right to work state of South Carolina.

But, since the NLRB is an independent agency, shouldn’t they be allowed to coordinate about ongoing litigation? Yes and no. The NLRB is supposed to be an independent agency, capable of creating rules, enforcing them and adjudicating them.

But because the NLRB has within itself all of the governing powers our Founding Fathers believed should be separated (legislative, executive and judicial), its creators also wrote rules making it illegal for board employees who perform different functions from communicating with each other under certain circumstances.

Specifically, 29 C.F.R. 102.126 and 29 C.F.R. 102.127 forbid a member of the board from requesting or “knowingly caus[ing] to be made” any ex parte communications with any interested person outside the agency relevant to the proceeding.

That same regulation also forbids any “interested person outside this agency” from making any ex parte communications to board members.

Most importantly, 29 C.F.R 102.127 specifically defines the phrase “person outside this agency” to include “the general counsel or his representative when prosecuting an unfair labor practice proceeding before the board pursuant to section 10(b) of the act.”

The regulations define an ex parte communication as “an oral written communication not on the public record with respect to which reasonable prior notice to all parties is not given.”

The emails Cause of Action obtained would seem to be covered by these laws.

Solomon is the general counsel. He is pursuing an unfair labor practice proceeding against Boeing before the board pursuant to 10(b) of the National Labor Relations Act.

Liebman was the chairwoman of the NLRB. Any decision made by the administrative law judge hearing the Boeing case Soloman is arguing could be appealed to Liebman’s board, much as lower court decisions are appealed to the Supreme Court. So all communications between Solomon and Liebman about the Boeing suit would be illegal under the NLRA.

Cause of Action has obtained at least four emails sent to both Solomon and Liebman explicitly about the Boeing litigation. There is also a fifth email about the Boeing litigation, sent from Liebman herself, to Cleeland and Solomon. All of these communications appear to violate NLRB’s own rules.

Cause of Action has asked NLRB’s inspector general to investigate the apparently illegal coordination by Liebman, Cleeland and Solomon on the Boeing suit. But Congress must do more.

It is bad enough that Congress has eviscerated the Constitution’s separation of powers doctrine by ceding away its governing powers to administrative agencies like the NLRB. Congress should not now allow those agencies to ignore what few protections have been left in place.

NLRB biasis a menaceto business

When so many of our fellow citizens are looking for work and America is competing against other countries to land businesses, the National Labor Relations Board continues to pursue an activist, politically motivated agenda thwarting economic recovery and continuing to place our companies at a competitive disadvantage worldwide.

Virtually everyone is familiar with the most glaring example of overreach and union pandering, which is the complaint against Boeing.

Despite not a single example of job loss and despite not a single worker benefit in Washington State being lost, the NLRB sued Boeing seeking to have it close its South Carolina plant, displace the workers hired, and return the work to Washington State.

That is Exhibit A in proving the NLRB has become a sycophant for Big Labor but is by no means the only piece of evidence.

Currently, union elections take place on average within 31 days of the filing of an election petition. Additionally, unions are victorious more often than not when there is an election, but that is not good enough.

Unions want more, so they persuaded the NLRB to propose sweeping changes to the election process, shifting the balance of power even further toward union seeking employees.

By promoting “rush elections,” and ruling that elections can take place in as little as 10 days, the board severely limits the opportunity for workers to hear all sides of the issue and make an informed decision.

Additionally, employers would have only seven days to retain legal counsel and decipher the complex labyrinth of federal labor law before presenting their case before an NLRB hearing officer.

House Education and the Workforce Committee Chairman John Kline smartly introduced H.R. 3094, the Workforce Democracy and Fairness Act, to level the playing field. This legislation requires no union election occur in less than 35 days, thus granting all parties the ability to present their arguments and ensuring workers have the ability to reach an informed decision.

H.R. 3094 acknowledges that full and complete information is treasured when employees are contemplating how they will vote.

Ironically, some unions have already endorsed President Barack Obama’s re-election bid despite the fact that the election is well over a year away. Clearly they believe they needed the time (12 months) to inform their members of their endorsement.

However, somehow a week is enough for employers to lay out their facts prior to an election that is significant to them.

The hypocrisy and blind advocacy has to stop. The purpose of the National Labor Relations Act (NLRA) is to balance the rights of the employers, the employees and the general public. The NLRA is not calculated to drive up union membership because they are a loyal constituency for the Democrat Party.

Because the NLRB — through its filing and proposed rules and regulations — has lost all pretense of objectivity in labor issues, fair, evenhanded legislation such as Chairman Kline’s Workforce Democracy and Fairness Act are necessary.

Trey Gowdy, a Republican, represents South Carolina’s 4th District in the U.S. House. (Published in the Charleston, SC Post and Courier)

 

Peter Schaumber, the former chairman of the National Labor Relations Board, is urging the current NLRB to stop stonewalling Congress with regard to their efforts to punish Boeing and Right to Work States:

“House Oversight and Government Reform Committee Chairman Darrell Issa of California needs to resolve the impasse over requested Boeing documents with Lafe Solomon, the acting general counsel of the National Labor Relations Board.

Congress has a right to know now whether the Boeing complaint reflects benign poor judgment or an abuse of the agency’s prosecutorial discretion. Already, we know the filing of this complaint is chilling business investment in the United States, and for good reason.

Since mid-May, Solomon has by and large stonewalled the committee’s request for pre-complaint documents relating to the Boeing complaint. After a series of unproductive letters, the committee finally issued a subpoena for the documents on Aug. 12.

Tensions mounted recently when the agency was found to have deleted certain emails from the few pre-complaint documents it provided the committee. This action demonstrates a decided lack of seriousness in responding to the congressional subpoena.

Does the acting general counsel believe his office is immune to oversight? The Supreme Court has long recognized that the power of Congress to investigate “with process to enforce it — is an essential and appropriate auxiliary to the legislative function” (McGrain v. Daugherty).

The fact that the agency is “independent” of the executive branch does not immunize it from congressional oversight; it makes legislative oversight all the more necessary.Congress cannot wait for the courts to finally decide this complaint: The filing threatens job growth and a sustained economic recovery today. What domestic or foreign employer will want to maintain a U.S. presence or create a new one if the federal government can dictate the employer’s core entrepreneurial decisions — where to locate, relocate, transfer or outsource?

According to Michael Luttig, a former federal judge and Boeing’s general counsel, Solomon told him before the complaint was filed that the NLRB should not be involved in the matter, but he asked Boeing to settle the union’s charge.

Solomon offered a settlement, and Boeing accepted it; nevertheless, Boeing was told that the settlement was no longer adequate after conversations with the union.

Then, ignoring his own good advice, Solomon’s office filed a complaint that brazenly mischaracterized the statements of Boeing’s executives and, to make a case for violating the law, described the opening of Boeing’s new production line in South Carolina as a “transfer of unit work.”

The acting general counsel should move forward and suggest this course of action. The emails released this week further undermine the agency in the eyes of the public and those it serves.”