Labor Board Recess Appointments Ruled Unconstitutional by Federal Court

Remember the dispute that arose last year after President Obama appointed three new members to the vacant positions on the five-seat National Labor Relations Board (NLRB) on January 4, 2012, under the Recess Appointment Clause of the U.S. Constitution? Senate Republicans disputed those appointments, stating that the Senate was not actually in recess at the time the appointments were made. They claimed that Congress was still “in session” at that time as GOP lawmakers in the House gaveled in for a few minutes every three days for so-called “pro forma” sessions, forcing the Senate to do the same, with the specific intent of preventing the President from making any recess appointments. After the appointments were made, an argument ensued between the executive branch and congressional Republicans as to what exactly constitutes a congressional recess. The White House has argued that the pro forma sessions, some of which lasted less than a minute, were nothing more than a sham.

On January 25, 2013, a panel of three Republican-appointed federal judges ruled, in Noel Canning v. National Labor Relations Board, that President Obama violated the Constitution when he made those recess appointments. If it stands, this decision could call into question the long tradition of presidential recess appointments and possibly invalidate more than 600 board decisions issued by the NLRB over the past year, as the invalidation of the appointees would mean that the board did not have a legitimate quorum to issue those decisions. The NLRB has taken the position that the court decision only applies in the context of the one NLRB decision that was challenged by Noel Canning, a Washington State canning company. NLRB Chairman Mark Pearce has stated that the NLRB believes that Obama’s appointments would be upheld in an appeal to the Supreme Court.

The business community is already using the above-mentioned appeals court ruling to undermine decisions made by the NLRB that have benefitted unions. The U.S. Chamber of Commerce has filed a letter using the court’s ruling to challenge the new rules that the labor board put forth in December 2011 to speed up the union election process. The Chamber argues that, given the court’s ruling, the March 2010 recess appointment of Craig Becker to the NLRB is also illegitimate, and without Becker, the board did not have an appropriate quorum to issue that ruling.

The Justice Department has hinted that the Obama Administration will ask the Supreme Court to overturn the decision.

Whistleblower Policy Victory

In a major victory for all working railroaders, the Occupational Safety and Health Administration (OSHA) has signed an accord with BNSF Railway, under which the railroad has agreed to voluntarily revise several personnel policies that OSHA alleged violated the whistleblower protection provisions of the Federal Railroad Safety Act (FRSA) and discouraged workers from reporting on-the-job injuries. The major terms of the accord include:

  1. Changing BNSF’s Policy for Employee Performance Accountability so that injuries no longer play a role in determining the length of an employee’s probation period following a record suspension for a serious rule violation. This has led to reductions in probation periods for at least 136 employees who had been injured on-the-job.

  1. Eliminating the railroad’s points policy, which was used to assigned points to employees who sustained on-the-job injuries.

  1. Revising the carrier’s Employee Review Process (ERP), so that work-related injuries no longer will be the basis for enrolling employees in the program. This led to the removal of 400 workers from the ERP.

  1. Instituting a higher-level review by the railroad’s upper management and legal department for cases in which an employee reports an on-duty personal injury and also is assessed discipline related to the incident.

  1. Implementing a program to teach BNSF managers, and labor relations and human resources professionals, about their responsibilities under the FRSA.

BNSF has agreed to make settlement offers in 36 cases in which an employee filed a whistleblower complaint with OSHA claiming harm from one or more of the above policies. Hopefully this accord will set the tone for other railroads to take steps to ensure that their workers are not harassed, intimidated, or terminated for reporting workplace injuries.

The Federal Railroad Safety Act, originally passed in 1970 and amended in 2007, prohibits railroads from retaliating against employees who report unsafe conditions, accidents, and on-the-job injuries. Although some progress has been made, an ingrained culture of harassment in the railroad industry still remains.

During the final week of January, BLET Director of Regulatory Affairs Vince Verna and Brotherhood of Maintenance of Way Employees Safety Director Rick Inclima testified in Washington, D.C., before the Whistleblower Protection Advisory Committee, on behalf of the Teamsters Rail Conference. They explained that employees are often at a disadvantage when reporting accidents or unsafe conditions; however, their position has improved because of stronger whistleblower protections enforced by OSHA.

Brother Verna concluded his testimony with the following statement: “In an effort to reduce unsafe conditions, railroad management should commend whistleblowers as early warning systems who create a safer workplace. A robust system is needed where the messenger is rewarded rather than punished, and where reporting unsafe conditions or actions is seen as routine rather than an act of courage that puts your job on the line. While we believe the law provides our members with excellent protections, the implementation and enforcement of the law, as well as education about the laws protections, remain a mystery to the BLET members who should share full enjoyment of its benefits.” The full text of the testimony can be found at

We are grateful to all our union officials who have worked hard on this issue and look forward to a time when railroaders no longer fear reporting an on-the-job injury or unsafe condition in the workplace.

Filibuster Reform Disappointing

Senate Majority Leader Harry Reid (D-NV) and Senate Minority Leader Mitch McConnell (R-KY) negotiated a compromise in late January that includes two packages of amendments to the Senate Rules concerning filibusters. The amendments were passed on January 24 by votes of 78 to 16, and 86 to 9. This new deal preserves the filibuster but offers the majority several options for how to get bills to the Senate floor. The return to the “talking filibuster” was not included in the amendments.

The following is a list of the formal changes:

  1. Shorten debate following a cloture vote on the motion to proceed from 30 hours to four.
  2. Leave the ability to filibuster that cloture vote essentially intact.
  3. Allow the minority to offer two amendments on every bill.
  4. Shorten confirmation time for judicial nominees once cloture is invoked.

Two informal changes are to be executed without actually changing the Senate rules:

  1. Senators will have to actually be on the floor to threaten a filibuster.
  2. Time allocated for debate will have to actually be spent on debate.

Some Democrats who wanted to see bigger changes were disappointed that Majority Leader Reid did not go further and instead chose to avert the “nuclear option,” a parliamentary procedure that could implement rule changes with only 51votes rather than a two-thirds majority.

Resignation of Transportation Secretary LaHood


U.S. Transportation Secretary Ray LaHood announced on January 29 that, after serving for four years in President Obama’s Cabinet, he would not be staying on for the second term. He said he plans to remain at the department until his successor is confirmed by the Senate, which is expected in about two months. Possible replacements for LaHood include Los Angeles Mayor Antonio Villaraigosa, who has pushed for increased rail service in Los Angeles and served as chairman of last year’s Democratic National Convention, and Debbie Hersman, Chairman of the National Transportation Safety Board. The name of former Representative Jim Oberstar of Minnesota, who led the House Transportation and Infrastructure Committee, has also been mentioned.

Rep. Jeff Denham, Republican from California, Named Chair of RR Subcommittee

On January 16, U.S. Representative Jeff Denham (R-CA), a member of the House Committee on Transportation and Infrastructure, was named Chairman of the Railroads, Pipelines, and Hazardous Materials Subcommittee for the 113th Congress. Rep. Denham has been an outspoken critic of California’s ambitious plan to connect Los Angeles and San Francisco with high-speed passenger trains. The $68 billion project has been a favorite of the Obama White House, but has not received much support from Republicans. Last summer, Mr. Denham wrote and won support for an amendment to the House’s fiscal 2013 spending plan for the Transportation, Housing, and Urban Development departments that would have barred the use of any funding for California’s high-speed rail efforts. Rep. Bill Shuster (R-PA) was previously the Chairman of the Railroads, Pipelines, and Hazardous Materials Subcommittee and is now the Chairman of the full House Committee on Transportation and Infrastructure.