NLRB Illegally Wades into Labor Dispute; Private Sector Fights Back

Just a couple of short years after using litigation to intimidate Boeing into either allowing new South Carolina employees to organize, or to move those new jobs to a state with stronger labor protections, two regional directors of Obama’s National Labor Relations Board asserted themselves in a labor dispute in New York earlier this year between Cablevision and the Communications Workers of America union. The NLRB, however, doesn’t have the authority to wade into the dispute because a D.C. Circuit Court ruled in January that Obama’s recess appointments to the NLRB were illegal.

Cablevision, according to the Wall Street Journal, sought emergency injunctive relief from that same D.C. Circuit Court earlier this year to stop the NLRB from trying to adjudicate the dispute in the agency’s administrative court:

Cablevision is petitioning the D.C. Circuit to issue a writ of mandamus—a direct court order—prohibiting the NLRB from proceeding with unfair-labor-practice complaints against it and its parent company, CSC Holdings. Cablevision’s rationale is straightforward: The same D.C. Circuit ruled in January that President Obama’s non-recess recess appointments to the NLRB were illegal. Thus, the board has been operating without a quorum since January 2012….

Cablevision’s request is also notable for pointing out the substantial business costs of the NLRB’s defiance. In reply to other mandamus petitions filed against it, the labor board has suggested that companies should be required first to complete the entire NLRB administrative process—sitting in front of a judge, then the board itself—before being allowed to ask a court to declare the currently illegitimate NLRB’s rulings invalid.

This, as Cablevision notes, forces companies to expend “massive resources” litigating in front of a board that two circuit courts have declared void. Companies are in the absurd position of spending money to litigate claims in front of this NLRB, more money to get a court to deem those NLRB rulings invalid, and then yet more to relitigate them if the NLRB restarts proceedings after it gains a quorum. The NLRB’s crude strategy is obvious: It expects that companies will settle complaints rather than endure the expense and hassle.

As important, Cablevision notes that a writ of mandamus is necessary if the D.C. Circuit wants to send a message that the federal judiciary isn’t to be so easily disobeyed. The Obama board has flippantly argued that it need not follow the D.C. Court’s ruling because the Supreme Court hasn’t weighed in. The NLRB didn’t even bother to ask for (much less obtain) a stay of the D.C. Circuit Court’s ruling. Instead, as Cablevision notes, it “arrogated to itself the power to decide when an Article III court’s ruling shall take effect, seeking to shift onto private parties the burden of proving such harm.”

Cablevision pivoted today to requesting an emergency stay from the U.S. Supreme Court, after being turned down for an emergency stay by the D.C. Circuit:

The cable giant on Monday petitioned Chief Justice John Roberts to take action to prevent the NLRB from holding an administrative trial over the Communications Workers of America’s contention that Cablevision illegally fired 22 workers who sought to join the union. On Friday, Cablevision lost an effort to get an emergency stay from the U.S. Court of Appeals in Washington, although the appellate court is still considering the company’s writ of mandamus.

The company said in a statement, “The role of Congress is to ensure a balanced NLRB and the Obama administration bypassed Congress in order to stack the NLRB in favor of Big Labor.  Two different federal courts – the D.C. Circuit and the Third Circuit – have established that the NLRB is illegally constituted and has no authority to take action.  The NLRB continues to ignore these rulings, and we ask the Supreme Court to compel the NLRB to immediately halt its unlawful proceedings against Cablevision.”

Cablevision noted that the Supreme Court granted review of a case that calls into question Obama’s ability to make recess appointments to the NLRB.

The Boeing dispute actually became a bit of a political headache for Obama ahead of the the 2012 cycle, but that belies the point: administrative action by the NLRB now, as before, would be illegal, illegitimate, and completely without justification in the first place. If SCOTUS fails to act to stop this overreach, it would be a blow to due process protections currently enjoyed by the private sector, and would hand Big Labor a massively underhanded victory. The National Labor Relations Board is part of the progressive left’s radical agenda to rule by executive fiat, running around Congress and the other institutions of government. Here’s hoping Chief Justice Roberts and the rest of the Court continues its recent string of major nods to liberty.

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