Friday, February 1, 2013

Chamber Urges Employers to Appeal Prior Adverse Board Rulings

CcJeff discussed in an earlier post the effect of Noel Canning, in which the D.C. Circuit held that recess appointments to the NLRB are unconstitutional.  Now Laura Cooper (Minnesota) sends word that the U.S. Chamber of Commerce is urging its members to use Noel Canning to challenge recent -- and even longstanding -- pro-employee Board decisions. 

Here's an excerpt from what appears to be a Wall Street Journal article reprinted by the Chamber [but check out the date on the document!]:

The U.S. Chamber of Commerce is advising companies to try to reverse rulings the National Labor Relations Board made against them in the past year, following a court decision that has undermined the federal panel.

The chamber's push, outlined in a memo the business trade group began distributing to its members Wednesday, is the latest fallout from last week's federal court ruling that voided President Barack Obama's three recess appointments to the five-slot labor board.


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Sometimes I come to this site just for the giggles. "Pro-employee decisions"?!? Please try not to confuse "pro-union" with "pro-employee."

Question: Isn't the AFL-CIO doing the same thing with regard to this Board's pro-employer dec....

Sorry. Couldn't finish typing it without ROFLMAO.

Posted by: James Young | Feb 1, 2013 12:10:49 PM

Jim -- I have (as you know) some sympathy for the point that I've been hearing you attempt to make for about a decade and a half. Might I suggest that in at least some cases (even on your view of the world) "pro-union" and "pro-employee" are not antithetical. I am prepared to agree that often none of the "players" involved in this drama -- whatever it is -- would recognize employee sentiment if it walked up and bit them in the rear end. Having said this, you would have a most difficult time talking me into the notion that the chamber is anything other than implacably anti-employee or that the AFL-CIO is not on balance pro-employee (though it is obviously institutionally pro-union). I've been willing to accept the bona fides of your organization's pro-employee orientation, but I can't be talked out of the sentiment in the immediately preceding sentence. As someone who was once an "employee" and who deeply cares about employees on a basic justice level I am always willing to have this discussion.

Posted by: Michael Duff | Feb 2, 2013 8:42:24 AM

Lots of the Board's recent decisions protecting Section 7 rights where there is no union involved at all, like Hispanics United of Buffalo and Hoodview Vending Co., are clearly pro-employee and not "pro-union." Extending protection of concerted activities might eventually lead to unionization in some instances, but you'd have to think the Board was conspiring every minute of the day to help unions to say that these decisions were based on pro-union rather than pro-employee sympathies.

Posted by: Guy | Feb 2, 2013 2:50:06 PM

I would concede the first point, Michael. Indeed, I would go further, and point out that you're one of the more fair-minded Board attorneys with whom I have dealt (and that's a small club of about three or four in more than two decades of practice). I didn't have an inkling of your pre-attorney history until I read it (I think) in a law review article.

I would also concede that "pro-union" and "pro-employee" are not antithetical in all cases. I don't believe that I said that they were, and if you inferred that from my comment, that was not my intention. But I think that you would have to concede that the Board is "institutionally pro-union," if slightly less so than the AFL-CIO.

Posted by: James Young | Feb 2, 2013 7:34:47 PM

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