Tag Archive for: national labor relations board

Appeals Court Rules In Trump’s Favor, Says He Can Fire Two Executive Branch Officials

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President Donald Trump is allowed to fire two board members from independent federal agencies after the U.S. Court of Appeals for the District of Columbia Circuit voted two to one to remove restrictions on the president’s ability to do so. 

The court agreed to remove orders imposed by two district judges earlier this month that blocked the Trump administration from removing Cathy Harris from the Merit Systems Protection Board and Gwynne Wilcox from the National Labor Relations Board. 

The appellate court, led by Judge Justin Walker, stated that Trump acted constitutionally when he fired the individuals. 

“Article II of the Constitution vests the ‘executive Power’ in ‘a President of the United States’ and requires him to ‘take Care that the Laws be faithfully executed.’ ‘To protect individual liberty, the Framers created a President independent from the Legislative Branch,’” Walker wrote in his decision. 

Judge Karen LeCraft Henderson, an H.W. Bush nominee, voted alongside Walker to overturn the lower court’s ruling on the firings. 

The decision from the appellate court came after the Justice Department asked the court to intervene in the orders, which were issued by District Judge Rudolph Contreras and District Judge Beryl. Contreras ruled on March 4 that Trump broke the law when he tried to fire Harris, and two days later, Howell ruled that Trump overreached his authority in attempting to remove Wilcox. 

President Joe Biden nominated Harris to the MSPB in 2022. He nominated Wilcox to the NLRB in 2021, renominated her for a second term in 2023, and then designated her chair in 2024. 

Wilcox and Harris’s attorneys advocated against the appellate court overturning the decision to block their firings, with Wilcox’s attorneys arguing that the Trump administration needed to lobby the Supreme Court if they wanted to “adopt a more expansive view of presidential power,” according to court documents. 

The Trump administration, however, successfully argued that Trump had the authority to fire both board members and that blocking the president from doing so would harm the separation of powers and undermine the president’s constitutional authority.

Biden fired NLRB General Counsel Peter Robb in Jan. 2021 after he refused to resign just hours after Biden was sworn into office. Robb called the move “unprecedented,” writing, “The removal of an incumbent General Counsel of the NLRB prior to the expiration of the term by a President of the United States is unprecedented since the nascence of the National Labor Relation Act (NLRA) and the NLRB,” according to Bloomberg Law.

The 9th U.S. Circuit Court of Appeals ruled in Jan. 2023 that Biden had the power to fire Robb because he was in an “at will” position as the general counsel, unlike other NLRB board members who may only be fired due to “neglect of duty or malfeasance in office,” according to the National Labor Relations Act. 

The sole judge that voted against the Trump administration, Judge Patricia Millett, was nominated by Democratic President Barack Obama, She accused her two colleagues of attempting to “rewrite” Supreme Court precedent.

AUTHOR

Pedro Rodriguez

Contributor.

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House Committee Report Finds Widespread ‘Misconduct’ In Union Elections By Government Labor Board

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The National Labor Relations Board’s (NLRB) expansion of mail ballot elections has led to widespread mismanagement, misconduct and procedural irregularities by the agency, according to a report released Thursday by the House Committee on Education and the Workforce.

The NLRB issued a decision in November 2020 expanding regional agency directors’ ability to order that union elections operate by mail rather than the traditional manual ballot due to the COVID-19 pandemic. Since the decision, voter turnout has decreased while both institutional issues, like employees interfering in elections, and integrity issues, like inappropriate voter solicitation and the number of lost or voided ballots, have increased, according to the report.

The investigation spawned as a result of a former NLRB employee cooperating with the committee to detail instances covering 15 different NLRB regions and 33 representation cases, according to the report.

“Through blatant misconduct that resulted in the disenfranchisement of workers participating in union elections, the NLRB has outright corrupted its once gold standard of secret ballot, onsite elections,” Education and the Workforce Committee Chairwoman Virginia Foxx said in a statement to the DCNF. “By broadening its own authority and instituting a series of administrative changes that emboldened its own cadre of regional directors, the agency took risks that alienated voters. As this report makes clear, the NLRB’s administration of mail ballot elections has become deeply fraught with procedural misconduct and gross irregularities.”

One case involves an NLRB official located in Buffalo, New York, who informed voters that they could hand-deliver their ballot to the agency’s local office and that if no one was there to accept it, they could slide it under the office door, according to the report. In this instance, the NLRB allegedly violated the election agreement, which did not permit votes to be cast in person.

In another case in the Pittsburgh, Pennsylvania, region, an NLRB agent told a potential voter that she would deliver the ballot in person to them while she was on the clock, even though the notice of election required that it be a secret ballot carried out by mail, according to the report. By meeting in person, the board official and the potential voter could have had a prohibited conversation that could have swayed a vote.

The committee first requested documents from the NLRB on the increase in mail ballot elections and allegations of misconduct in October 2022, not receiving a response until May 2023, according to the report. The initial response was deemed inadequate, and more complete information was provided by the NLRB in August 2023.

Internal emails indicate that on March 19, 2021, NLRB officials handling votes for an election by workers at Airway Cleaners, represented by the United Construction and Industrial Employees Local 621, appeared to change the number on a submitted ballot to reconcile that there were two ballots with the same number but different names, in violation of integrity rules, according to the committee. In another instance, a union vote for workers represented by Teamsters Local 396 resulted in an employee being sent a ballot even though they were not on the voter list.

The Inspector General of the NLRB, David Berry, released a separate report in July 2023 detailing gross mismanagement by the NLRB involving an election for workers at Starbucks, where Starbucks was not properly informed of special voting arrangements regarding mail ballots. The resulting mismanagement had a “significant adverse impact” on the NLRB’s ability to perform its mission.

Following the mishandling of the Starbucks vote, the company sent a letter to the NLRB accusing the agency of colluding with unions, according to Bloomberg Law.

The NLRB has been emboldened under the Biden administration following Joe Biden’s pledge to be the most “pro-union president you’ve ever seen” the night before the 2020 election. A judge ruled earlier this month that Amazon’s CEO violated labor law by saying in public interviews that workers would be “better off” without unions and that unions are slow and bureaucratic.

The NLRB declined to comment to the DCNF.

AUTHOR

WILL KESSLER

Contributor.

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