Court Declares Obama’s NLRB Appointments Unconstitutional; Strip Club Safety; No More ‘Big Labor’?

Mike Elk

Today, the U.S. Court of Appeals for the D.C. Circuit ruled that President Barack Obama’s appointments to the National Labor Relations Board were unconstitutional. From the Associated Press:

The three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said Obama did not have the power to make three recess appointments to the National Labor Relations Board because the Senate was officially in session – and not in recess – at the time. If the decision stands, it could invalidate hundreds of board decisions made over the past year.

It also held that presidents have the authority to bypass the Senate in filling vacancies only when they occur during a recess, which it said occurs only between the end of the first year of a two-year Congress and when lawmakers convene for the second year.

White House press secretary Jay Carney said the administration strongly disagrees with the decision and that the NLRB would continue to conduct business as usual, despite calls by some Republicans for the board members to resign.

The decision is novel and unprecedented,” Carney said. It contradicts 150 years of practice by Democratic and Republican administrations.” …

The Justice Department hinted that the administration would ask the Supreme Court to overturn the decision, which was rendered by three conservative judges appointed by Republican presidents. We disagree with the court’s ruling and believe that the president’s recess appointments are constitutionally sound,” the statement said.

After a series of high profile lockouts in Minnesota, its state legislature is now considering measures that would penalize companies that lock out workers. From Forum News Service:

Committee Chairman Joe Atkins, DFL-Inver Grove Heights, said in an interview that he plans two lockout provisions in bills still being written.

One would require organizations that lock out employees to pay unemployment insurance through the lockout’s duration. The other would restrict lockouts by organizations receiving state funds.

Most at the hearing opposed the lockout and no one from American Crystal’s management appeared. Union leaders organized the Moorhead testimony, and Atkins said he did not issue invitations to the meeting.

In Cleveland, OSHA is investigating the death of an exotic dancer after she fell over a guard rail while giving a lap dance. However, big questions are already being raised over whether OSHA has the authority to cover exotic dancers, as many are classified as independent contractors. From EHS Today:

Howard Eberts, area director of OSHA’s Cleveland office, said his office is investigating. According to Eberts, the agency has investigated complaints stemming from employment at similar dance clubs, including complaints about bloodborne pathogens. He said OSHA also investigated a domestic violence incident that took place at a Toledo-area strip club.

As part of the investigation, Eberts said his office is trying to determine if OSHA has jurisdiction in the case. We are trying to determine if the dancers are employees of the club or if they are independent contractors,” he said. Independent contractors are not normally covered by OSHA. We’re trying to work out those legal issues.”

Meanwhile, the investigation is ongoing, he said, adding that investigators are looking at things like the distance between the customer’s chair and the guardrail and the height of the guardrail.

Earlier this year, In These Times reported on a series of successful organizing drives at Cablevision in New York City. Now, as workers begin their campaign for a first contract, it appears the management of Cablevision is getting defensive. From Labor Notes:

Workers from the Canarsie facility and other garages dropped by, alone and in small groups, hopping out of utility vans to pick up T-shirts and chat for a few minutes with Communications Workers (CWA) organizers.

Cablevision managers are clearly feeling the strain. Two came out to object — and even claimed they were calling the police — after organizers tacked up a couple of banners on the company’s fence. (Unsurprisingly, NYPD never showed up.) One sat in a car for awhile, apparently watching the action, but sped off when organizers approached to film him in the act of surveillance.

And when a vanful of trainees in their first week on the job showed up, manager Darryl Gaines charged toward them shouting, Back in the van!”

The new workers jumped back into the vehicle and drove away as a flustered Gaines insisted, Those guys belong to me.” A videographer caught Gaines on video.

Top management appears to be on the defensive, too. Cablevision recently sued CWA for telling the public that the company’s Internet speed is slower in Brooklyn than elsewhere in the city.

Organizer Chris Calabrese said the union isn’t worried about the lawsuit, but is glad to have hard evidence the company is feeling the heat. The fact that they would put it into writing that it really bothers them is a plus for us,” he said.

Fifteen years after voting to join a union, 200 hospital workers in Kentucky have finally won a first contract. From the United Steelworkers website:

The workers voted in May of 1998 to join the USW, but union-busting tactics employed by the KRMC’s owners, Tennessee-based health care giant Community Health Systems (CHS), resulted in more than a decade of delays.

Over the years, the company refused to bargain in good faith, fired workers for union activity, brought in replacements, unilaterally changed conditions of employment, and committed numerous other infractions. Even when they lost court cases, KRMC often refused to abide by the orders and appealed the decisions.

In 2011, the hospital was found to be in contempt and ordered back to the bargaining table under one of the strictest orders in the history of the National Labor Relations Board. Almost all of the fired workers were reinstated, and the company was forced to pay nearly $750,000 in back wages.

USW International President Leo W. Gerard said the length of the KRMC workers’ struggle proves that reforms are necessary to U.S. labor law to ensure that workers get the recognition they deserve in a timely manner.

It’s outrageous that these workers had to wait 15 years for a contract because of one greedy company,” Gerard said. We’re happy to see that this day has come, but we must work to make sure this never happens again.”

Last, in light of new BLS statistics that show organized labor at a 76-year low, Alec MacGillis of the New Republic asks when the press will finally stop referring to unions as Big Labor.” From the New Republic:

Which leads to an obvious question: At what point in the continued decline of organized labor are its opponents going to stop referring to it as Big Labor? When it represents 8 percent of all workers? Five percent? Two percent? Those who have been seeking to diminish unions in this country can claim great credit for their success in doing so — as Kevin Drum notes today, it is the political and legal environment around organized labor in America, more than changed macroeconomic conditions, that explains why union membership has fallen so much more steeply here than in, say, Canada. But at some point, continuing to talk about Big Labor” makes its opponents start to look like the man who beats to a pulp a churchmouse with a broomstick, all the while loudly declaring that it is a grizzly bear.

Full disclosure: The United Steelworkers union is a 

Mike Elk wrote for In These Times and its labor blog, Working In These Times, from 2010 to 2014. He is currently a labor reporter at Politico.
Get 10 issues for $19.95

Subscribe to the print magazine.