Tag Archives: NLRB

Reply: Political Question Answer to Recess Appointment Test

Ed. note:  In anticipation of the D.C. Circuit’s consideration of Noel Canning v. NLRB, Professor Victor Williams recently posted a thought-provoking defense of last January’s controversial recess appointments based on the political question doctrine.  I responded, arguing that the President’s recess appointment power is limited in a judicially reviewable manner by Article I, section 6, which gives to the House the power to prevent the Senate from recessing and to the Senate the power to decide what constitutes a recess.  The D.C. Circuit heard oral argument on December 5.  This is Professor Williams’s gracious rebuttal. Continue reading

“‘You never know’ is no substitute for substantial evidence”: D.C. Circuit Vacates NLRB’s Finding that Union’s Overtures Broke Bargaining Impasse

Today the D.C. Circuit vacated the National Labor Relations Board’s decision that an employer unlawfully refused to bargain with a union before its employees decertified the union’s representation. Noting the court’s obligation to “examine carefully both the Board’s findings and its reasoning,” Chief Judge Sentelle concluded that “the record evidence not only does not support the Board’s finding, but uniformly supports [the employer's] position” that the parties were at an impasse. Continue reading

Political Question Doctrine Does Not Shield Controversial Recess Appointments

Victor Williams of Catholic Law School has an op-ed in today’s National Law Journal arguing that any challenge to the President’s recess appointments of National Labor Relations Board members is nonjusticiable on political question grounds. Continue reading

Panel’s Half-Hearted Enforcement of NLRB’s Union Certification Casts Doubt on Key Precedent

On Friday, a panel of the D.C. Circuit unanimously upheld the National Labor Relation Board’s certification of a union election despite grave misgivings about the judicial and agency precedent the court was forced to apply [pdf].   Continue reading

To Vacate or Not to Vacate? How to Handle Unlawful but Potentially Redeemable Agency Action

In a concurring opinion issued Friday [pdf], Judge Randolph continues his campaign to standardize the D.C. Circuit’s inconsistent disposition of administrative orders that it holds unlawful. Continue reading

Laurence Silberman Goes to Washington

The most recent issue of The Green Bag contains an account by Judge Silberman of Nixon-era political intrigue in which he played a prominent role. Continue reading

Trump Casino Wins Partial Victory Against NLRB and Card Dealers’ Union

Photo credit: banspy

The D.C. Circuit vacated the National Labor Relation Board’s decision that Trump Plaza Hotel and Casino had unlawfully refused to bargain with the union that purports to represent the Casino’s card dealers. Continue reading

NLRB Can Ignore Its Own Manual in Certifying a Union Election

In Hard Rock Holdings, LLC v. NLRB, the D.C. Circuit held on Friday that because the National Labor Relation Board’s Casehandling Manual is merely “staff guidance, not binding procedure,” the Board’s certification of a union election may stand despite two violations of the Manual. Continue reading