Department of Justice (DOJ)

The National Right to Work Legal Defense and Education Foundation Inc. and other business groups are using their pending lawsuit seeking to block the new NLRB Employee Notice Rules as a vehicle to scuttle the President's recent recess appointments to the NLRB. The NRTW, the National Federation of Independent Business, the Coalition for a Democratic Workplace, and two small businesses have sued to block the employee notice rule. But Friday, the plaintiffs moved to amend their complaint to contend that the recess appointments were constitutionally impermissible because the Congress was not in recess when the president made the appointments. This failure, the motion contends will make it impossible for the NLRB to implement the employee notice rule because it lacks a quorum to act.  Access the Plaintiffs' motion here.

This action comes on the heels of a Department of Justice opinion memo that concluded to the contrary that the recess appointments were legal and constitutional. Opponents have said the President lacked the authority to act because the Senate was still in session and not in recess.  The DOJ however has concluded that the "convening of periodic pro forma sessions in which no business is to be conducted does not have the legal effect of interrupting an intrasession recess otherwise long enough to qualify as a ‘Recess of the Senate' under the Recess Appointments Clause.”  As a result, the memo concludes, "the President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments.”

Curiously, a case involving the allegations of theft larger than any reported on the DOL website is omitted from the DOL's report. That case involved a UFCW Local in New York City and three of its union leaders who are alleged to have "extorted or stole over $2.4 million from the Union and employers whose employees belonged to the Union" over the period set forth in the indictment.

The United States Attorney's press release about the case can be found here.

A Federal government report reflects that in the first 10-plus months of 2011 government prosecutions have resulted in the conviction and sentencing of 82 individuals all working in the same industry. An additional 37 people in this industry have been convicted and await sentencing. The indictments of 50 more have been issued and these individuals await the adjudication of their cases.

The 119 who have been convicted of embezzling or otherwise stealing were caught taking more than $5.8 million which came from working men and women. The 82 who already have been sentenced to a total are to serve a total of nearly 40 years behind bars or in home confinement and must spend a total of nearly 200 years on probation. 

This industry is organized labor. Most of the crimes (both admitted and alleged) were against the working people organized labor purports to want to represent. The prosecutions were by the Obama Administration’s Justice and Labor Departments – thus, these were not part of some witch hunt by an anti-union administration. Rather, these “enforcement actions” were brought by one of the most labor friendly administrations in history. Nor was this an unusual level of activity in this area. Indeed, for much of the last decade the Justice Department has had to prosecute a similar magnitude of union officials and employees each year for various crimes – most typically embezzling or otherwise stealing union funds. 

The 2011 DOL listing of criminal enforcement actions is available here.