The Wall Street Journal applauded another anti-worker decision of the extremely conservative U.S. Court of Appeals for the D.C. Circuit and touted its escalating attacks on the National Labor Relations Board.
The D.C. Circuit is considered second only to the Supreme Court in importance because it has jurisdiction over the bulk of challenges to government action and regulations ranging from national security to environmental law. It is currently skewed to the far right, due to a highly successful court-packing effort by the Republican Party. The results have been predictably devastating for government protections that offend big business sensibilities.
The National Labor Relations Board (NLRB) - frequent bogeyman of the right - has been a victim of this ideological bias, and the WSJ highlighted the D.C. Circuit's radical decision invalidating the president's last two nominees to the NLRB when commentating on a more recent judicial "smackdown" of worker rights. From the WSJ:
[T]he D.C. Circuit Court of Appeals, ruling in National Association of Manufacturers v. National Labor Relations Board, struck down the NLRB's diktat that businesses put up pro-union posters in the workplace. That, the court said, violated employer free speech rights in place since Congress's 1947 Taft-Hartley Act. It got worse.
Before even getting to the heart of his opinion, Judge A. Raymond Randolph wrote, "Although the parties have not raised it, one issue needs to be resolved before we turn to the merits of the case." That "one issue" is of course the now-famous Noel Canning case, the D.C. Circuit's January opinion which held that President Obama's non-recess recess appointments to the NLRB were illegal, and thus hundreds of past and current NLRB rulings are illegitimate. While the poster rule was not affected by Canning, the appeals court felt the need to remind the NLRB of its current, weak status. Ouch.
The specific case that the WSJ used to attack the legitimacy of the NLRB in general, National Association of Manufacturers, is disturbing in its own right, if sadly typical of an appellate court that has proven to be hostile to regulations that seek to curb corporate excess. Utilizing a strained reading of the First Amendment, the D.C. Circuit held that a NLRB rule that required employers to display a notice informing workers of their rights under the National Labor Relations Act (NLRA) of 1935 impermissibly compelled employer speech.
From the April 26 edition of Fox News' America's Newsroom:
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Fox News' Megyn Kelly and Chris Stirewalt attacked a program that would help people seeking health insurance understand the new health care reform law, baselessly suggesting that "unions and community advocacy groups" might use the program to steal patients' personal information -- even though Stirewalt admitted that "there's no evidence" Fox's claims were true.
On April 3, the Department of Health and Human Services proposed regulations for health care navigators, assistants who would provide "unbiased information" to help consumers understand the new health care law and enroll in insurance plans, as a post on Health Affairs Blog noted.
Kelly, appearing to echo a Washington Examiner post, led a segment on the April 4 edition of America Live by describing navigators' roles and then saying, "But now some are raising red flags, saying the rules allow these jobs of the navigators to be filled by organizations with political agendas, including unions and community action groups."
Kelly failed to explain why allowing union members to become navigators would be problematic, and the words "union" and "community action" do not appear in the proposed rules.
In fact, while the rules do include standards on who can apply for navigator jobs, these standards center on conflict-of-interest problems: since navigators will be required to provide unbiased information about insurance plans, the rules prohibit health insurance issuers or their lobbyists from becoming navigators.
From the March 29 edition of Premiere Radio Networks' The Rush Limbaugh Show:
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Fox News host Bill O'Reilly endorsed the idea that the state confiscation of money from private bank accounts currently underway in Cyprus is likely to come to America, agreeing with a viewer's suggestion that "California will be America's Cyprus." His fearmongering is based on misrepresentations about how debt works in general, and about California's budgeting realities specifically.
According to O'Reilly, California will inevitably default on its debt, and when that happens the state will simply start taking private property from Californians to settle up what it owes. From the March 27 edition of Fox News' The O'Reilly Factor:
But debt does not work the way O'Reilly suggests. California can continue to service its debt, avoiding default even without reducing the principal amount owed, provided it stabilizes its debt levels. And it's doing exactly that, with a projected surplus in the current fiscal year after a combination of steep spending cuts and significant tax increases. Standard & Poor's upgraded the state's debt as a result, which should help further reduce the state's cost of borrowing (which is already half of what it was when Gov. Jerry Brown took office in 2011).
Furthermore, according to CNNMoney, "California should have enough money next year to increase funding for education and pay down debt, while setting aside $1 billion in a reserve fund." O'Reilly failed to mention the state's recent, hard-won fiscal discipline, which belies his portrayal of the state's fiscal outlook.
The Cyprus comparison would remain ludicrous even if California were not exhibiting increased fiscal health, as former Federal Deposit Insurance Corporation chair Sheila Bair has explained that such an arrangement "would never happen in the U.S. because we respect the rule of law and we have a strong agency called the [FDIC] that stands up for insured depositors and protects them." But O'Reilly's factual errors served an additional purpose that's common in the right-wing media.
O'Reilly used the Cyprus fearmongering as a pivot to familiar falsehoods about the origins of California's debt. As Media Matters has repeatedly shown, the state's red ink stems not from union greed, but from budget laws that tie legislators' hands and ballot measures that simultaneously depressed tax revenue and increased the state's obligations. The conservative media's misdirection of blame for fiscal issues almost always ignores the cyclical, recession-driven nature of those balance sheet problems. But O'Reilly went further, ignoring the widely-reported end of Californian deficits to advance the same old canards about public finances.
From the March 9 edition of Fox News' Cavuto on Business:
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Conservative media are in the middle of a concerted push to claim that a government report confirms their longstanding claim that the federal government wastes tax money on employees whose sole duty is "union work," but ignore key content of the report in question that undermines their misleading narrative.
Fox Business host Stuart Varney made that claim on the February 28 edition of Fox & Friends. But Varney's oversimplified version of the conservative case ignores the content of the report in question, and the more sophisticated version of the case made elsewhere falls apart under minimal scrutiny of the evidence these outlets offer.
During a discussion on federal expenditures for union activity, Varney said that the recipients "worked full-time on union business," and "did not work for the taxpayer." When host Steve Doocy noted that's not how private-sector unions tend to work, Varney replied "Well I don't want to be cynical, Steve, but you've never worked for the federal government, now have you?" Watch:
The report Varney cites from the Office of Personnel and Management directly contradicts his blanket assertion that this money goes to full-time union reps in the introduction. OPM explains that "voluntary membership in Federal sector unions results in considerable reliance by unions on the volunteer work of bargaining unit employees, rather than paid union business agents." In the next paragraph, OPM adds that these hours of pay go to "Federal employees performing representational work for a bargaining unit in lieu of their regularly assigned work. It allows unions to satisfy their duty of fair representation to members and non-members alike."
Varney's presentation of this misinformation on a flagship Fox News program may prove an inflection point for a piece of misinformation that's percolated through other, smaller conservative media outlets since the OPM report came out in mid-February. On February 19, Fox Nation hyped a Washington Post story that noted some of the contextual information OPM provided. That same day, a Washington Examiner editorial writer highlighted the report. RedState.com put its own write-up on the front page on February 21, beneath an image of brass knuckles atop a pile of cash. On the February 27 edition of Your World with Neil Cavuto, Fox Business' Liz MacDonald made the same set of claims, and numerous other op-eds and blog posts from conservatives have accused the government of this same misspending of taxpayer dollars. Conservative gripes about "official time" expenditures are not new, however, as this 2011 Heritage Foundation testimony on the subject indicates.
Many of these other instances cite Freedom of Information Act requests by the conservative Americans for Limited Government to back their claims. According to ALGFOIAFiles.com, the group requested information from four departments on employees who perform "official time" labor representation work full-time. All four -- the Environmental Protection Agency, National Labor Relations Board, Small Business Administration, and the Department of Transportation -- responded between September and November of 2012. While conservatives like Trey Kovacs, a labor analyst for the Competitive Enterprise Institute, point to the EPA (which found 17 full-time union reps) and DOT (which found 38) responses as proof of a widespread "problem" whereby taxpayers fund work that does not benefit them, the reality of these four FOIA responses is not nearly so convenient for conservatives.
The data expose this claim for what it is: ideology masquerading as empiricism. As the table below shows, according to the most recent data available the four departments ALG successfully FOIA'd have as many as 0.19 percent of their employees doing union representation work full-time. And those employees do not account for all of the billed "official time" hours in any department, confirming that there are indeed many public servants (in the conservative sense of the phrase) who pitch in to bargaining and other representational efforts as needed.
The New York Times highlighted Republican efforts to prevent the Consumer Financial Protection Bureau from functioning, in part by leveraging a recent DC Circuit Court of Appeals' decision that drastically limits the president's power to make recess appointments. But the Times understated the decision's role in continuing GOP obstructionism, even as the corporate lobby appears ready to take advantage of it to undo consumer and labor protections.
In Noel Canning v. National Labor Relations Board, a panel of the extremely conservative judicial circuit responsible for reviewing checks on corporate power issued a decision that rolled back decades of case law on presidential recess appointments. Although the case was nominally about one company's challenge to an adverse NLRB decision through a claim that the recess appointments of two board members were illegitimate, the ensuing opinion was so overbroad that the threat to other recess appointments - such as that of the current CFPB director - was immediately apparent.
In reference to Noel Canning's effect on the CFPB, the Times editorialized:
The bureau cannot operate without a director. Under the Dodd-Frank law, most of its regulatory powers -- particularly its authority over nonbanks like finance companies, debt collectors, payday lenders and credit agencies -- can be exercised only by a director. Knowing that, Republicans used a filibuster to prevent President Obama's nominee for director, Richard Cordray, from reaching a vote in 2011. Mr. Obama then gave Mr. Cordray a recess appointment, but a federal appeals court recently ruled in another case that the Senate was not in recess at that time because Republicans had arranged for sham sessions.
That opinion, if upheld by the Supreme Court, is likely to apply to Mr. Cordray as well, which could invalidate the rules the bureau has already enacted. The president has renominated Mr. Cordray, but Republicans have made it clear that they will continue to filibuster, using phony arguments to keep the agency from operating.
The Wall Street Journal recently joined Fox News in attempting to rewrite a radical and unprecedented federal appellate court opinion to fit their caricature of a "lawless" President Obama. But even as a WSJ editorial picks up Fox News' misrepresentation of the appellate court's sweeping decision on the constitutional legitimacy of presidential recess appointments as a narrow swipe at Obama, the Fox-fueled version is starting to unravel.
On January 29, the WSJ published an editorial that claimed "the latest disdain for the Constitution's checks and balances" was the Obama administration's response to a recent outlier opinion of the D.C. Circuit Court of Appeals. This decision broke with centuries of practice and case law by holding presidents can only make recess appointments when both a vacancy and appointment occur in-between congressional sessions. Specifically, the WSJ was offended that the National Labor Relations Board accurately pointed out the opinion was technically limited to the party that brought the case - despite its serious implications for all other similarly situated plaintiffs - and not only was it not currently in effect, it might be overturned on appeal. From the WSJ editorial, which accused the NLRB of planning to "ignore" the opinion:
So, let's see. First, President Obama bypasses the Senate's advice and consent power by making "recess" appointments while the Senate was in pro-forma session specifically to prevent recess appointments. Then when a federal court rules the recess appointments illegal, the NLRB declares that it will keep doing business as if nothing happened.
Without Mr. Obama's illegal appointments, the board would have been without a quorum and unable to decide a single case. That lawless behavior means more than 200 of the NLRB's rulings in the past year are in limbo. It's bad enough to force those 200 litigants to appeal rulings that are sure to be overturned. But the board wants to keep issuing new rulings though it now knows that a unanimous appeals court has declared them illegal, pending a Supreme Court review that may never happen.
In their rush to frame a federal appellate court opinion as a personal rebuke of President Obama, Fox News host Megyn Kelly and frequent guest Jay Sekulow misrepresented the truly radical and unprecedented nature of a decision of the U.S. Court of Appeals for the District of Columbia on presidential recess appointments. Although Kelly and Sekulow erroneously reported that the opinion only affects Obama's recess appointment of members to the National Labor Relations Board, it actually casts doubt on hundreds of presidential appointments and subsequent actions since the 1940s.
On the January 25 edition of America Live, Kelly repeatedly reported that the DC Circuit "clipped President Obama's wings" by holding the Republican-controlled Senate was actually in session when Obama made recess appointments to the National Labor Relations Board, pursuant to long-standing presidential powers. The NLRB is, of course, a frequent bogeyman for both right-wing media and corporate interests because of its perceived favorability to unions. Kelly and Sekulow, who filed an amicus brief in the case as Chief Counsel for the American Center for Law and Justice, claimed the decision's holding depended on the fact that the Senate was technically in session because of a new parliamentary trick that gavels the Senate into "pro forma session" even though no business is conducted. This is inaccurate.
The Wall Street Journal argued in an editorial that the National Labor Relations Board, which is charged with protecting workers' right to organize, has overstepped its authority to do unions' bidding regardless of the law--particularly in its approach to employers' social media policies. A review of the NLRB Office of the General Counsel's memos, however, demonstrates that the WSJ's characterization of the body's policies is without merit.
The January 6 editorial, titled "Another NLRB Power Grab," accused the body of becoming "a wholly-owned subsidiary of Big Labor, rather than a neutral arbiter of fair labor practice." In support of this claim, the WSJ presented blatantly false statements about the NLRB's approach to employers' social media policies:
Also insidious is the NLRB's effort to regulate how companies handle social media. In the Facebook and Twitter age, employers have an obvious interest in rules that prohibit their employees from defaming colleagues, or broadcasting confidential information. The NLRB has nonetheless decided that even reasonable restrictions impinge on concerted activity.
In fact, both the NLRB's Office of the General Counsel (OGC) and the Board itself have explicitly stated that employers may set certain limits on their employees' social media activities as long as they do not prohibit activities protected under the National Labor Relations Act. Three OGC memos provide guidance about what types of employer policies pass muster under the NLRA.
In the most recent memo, dated May 30, 2012, the OGC examined seven cases about employer social media policies and concluded that one of the employer policies was lawful in its entirety, while some provisions of the remaining six policies "are overbroad and thus unlawful under the National Labor Relations Act."
Although the OGC concluded that some aspects of a confidentiality policy were invalid, it also recognized that a policy that "admonishes employees to '[d]evelop a healthy suspicion[,]' cautions against being tricked into disclosing confidential information, and urges employees to '[b]e suspicious if asked to ignore identification procedures' " is lawful.
Nor did the OGC state that all social media posts are "concerted activity" that is protected under the NLRA. In fact, although it concluded that employees' Facebook posts can be protected if they meet the requirements applicable to communications outside of social media, it defined such posts narrowly. In a January 2012 memo, the OGC restated the NLRA requirement that protected activity must be "concerted," meaning that it seeks to involve other employees in a discussion of the terms and conditions and employment, and advised that an employee's online discussion would not be protected just because fellow employees "liked" a post.
Policies that are sufficiently clear and not limited in scope can pass muster in their entirety. The OGC advised that policies "that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they would not reasonably be construed to cover protected activity, are not unlawful."
In short, the WSJ's characterization of the NLRB's positions on social media bears no resemblance to the guidance it has publicly shared.
From the December 20 edition of Fox News' Fox & Friends:
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In The Washington Post, Fox News contributor Charles Krauthammer admitted that right-to-work laws lead to lower wages for workers -- conflicting with the narrative promoted by Fox News that such laws increase wages.
In his column, Krauthammer claimed that recently passed right-to-work laws in Michigan were "inevitable" and that "the entire Rust Belt will eventually follow because the heyday of the sovereign private-sector union is gone." Krauthammer wrote that such laws could possibly bring down unemployment, but he also admitted that President Obama's statement that right-to-work laws give workers "the right to work for less money" was correct:
Principle and hypocrisy aside, however, the president's statement has some validity. Let's be honest: Right-to-work laws do weaken unions. And de-unionization can lead to lower wages.
Obama calls this a race to the bottom. No, it's a race to a new equilibrium that tries to maintain employment levels, albeit at the price of some modest wage decline. It is a choice not to be despised.
I have great admiration for the dignity and protections trade unionism has brought to American workers. I have no great desire to see the private-sector unions defenestrated.
While hyping a GOP-led attack on the National Labor Relations Board, Fox News continued its pattern of misleading viewers about the NLRB's actions regarding Boeing's facility in South Carolina.
Reporting on the December 13 edition of America's Newsroom about a newly released report from the Republican-controlled House Oversight Committee, which criticized the NLRB as engaging in "militant advocacy for unions," Fox correspondent Doug McKelway claimed that the NLRB tried to "shut down" the Boeing plant:
McKELWAY: The best example of all this may be the NLRB's attempt to shut down Boeing's new assembly line in right-to-work South Carolina. Boeing spent billions, employed thousands of highly paid nonunion workers, while at the same time expanding operations at its unionized Washington state plant. Unionized employment actually increased in Washington state, yet the NLRB tried to have the South Carolina plant shut down.
In fact, the NLRB has a history of pursuing cases similar to the action it took against Boeing. The NLRB accused Boeing of moving a production line for the 787 Dreamliner from Washington state to South Carolina because Washington state employees "engag[ed] in ... lawful strikes" and Boeing wanted to discourage such activity in the future -- the type of action the NLRB has long pursued.
Fox News host Gretchen Carlson falsely claimed that the Michigan legislature's approval of right-to-work legislation is directly linked to the failure of a ballot initiative to put collective bargaining rights in the state constitution. In fact, the two issues are not linked legislatively.
Michigan's anti-union "right-to-work" bill, which will significantly alter the way unions are financed, was signed into law on December 11. The law forbids union contracts that require workers who enjoy the benefits of a collective bargaining agreement to pay union dues, reducing the amount of money a union takes in. Carlson falsely claimed on the December 12 edition of Fox & Friends that Michigan voters "voted on a referendum to do exactly just this -- to give people who belong to unions a free choice about whether or not they actually want to pay the dues or they don't."
Carlson echoed her claim on the December 13 Fox & Friends, saying that "voters actually wanted what happened here."