Court strikes blow against the Obama administration on union poster rule

From the beginning, the Obama administration has demonstrated a willingness to expand federal powers in unprecedented and highly controversial ways in order to serve its own political agenda. 

But, in the past few months the administration has suffered two major set-backs—all because it has taken a bullish attitude in thumbing its nose at the Constitution. 

First, a federal court of appeal held that President Obama violated the law in making appointments to the National Labor Relations Board (NLRB) without consulting Congress as required by the Constitution. And now a federal court has struck down a pro-union rule that the Obama administration’s NLRB illegally adopted without Congressional authorization—in express violation of federal law.

America's courts are sending a clear message to the White House: You, Mr. President, are not above the law.

We have seen the Obama administration take increasingly cavalier legal positions on a whole host of regulatory issues over the past four years. 

Remember that the administration pushed for enactment of the Affordable Care Act with a “vote first, ask questions later mentality.” And that nearly resulted in the Supreme Court striking down the entire health care law when the National Federation of Independent Business (NFIB) and 26 state attorney generals challenged his administration’s authority to enforce a constitutionally dubious mandate requiring individuals to buy health insurance. 

The administration may have narrowly survived our challenge to the health care law, but NFIB is continuing to hold President Obama's feet to the fire—or to the original meaning of the Constitution as the case may be.

Even the New York Times recently noted “an increasingly deliberate pattern by the administration to circumvent lawmakers…” But now that NFIB and other industry groups are finding success in fighting the administration’s most brazen attempts to circumvent the Constitution, the president is going to have to begin operating within the letter of the law. 

After all, the courts are sending him a clear message: You, Mr. President, are not above the law.
NFIB’s victory Tuesday is a perfect example. 

Last year President Obama’s NLRB voted to adopt the so called “Poster Rule.” The Poster Rule would have required business owners to prominently display posters giving employees “notice” of their rights under federal labor law. But, NFIB obtained an injunction to prevent NLRB from enforcing the rule, and Tuesday succeeded in striking it down completely.

In court the NLRB defended its actions arguing that the Poster Rule was necessary because some employees do not know their rights. But, even if it were true that employees are ignorant of their rights—a premise we disputed all along, especially given the availability of information in the Internet age—our point has always been that President Obama and his NLRB cannot create a rule simply because it would be a convenient way to address a political issue. Moreover, as we successfully argued in striking down the Poster Rule, the Constitution prohibits federal agencies from creating rules in violation of federal statutes.

In the Poster Rule case the NLRB was acting without statutory authorization from Congress, and in express violation of federal statutes. And in the NLRB recess appointment cases, the President was acting beyond the powers authorized to him in the Constitution. 

The bottom line is that our government cannot suspend or ignore constitutional rules—or lawfully enacted statutes—for expedient or pragmatic reasons. But, now President Obama and his NLRB advisors are learning this lesson the hard way. Of course, that’s what happens when you ignore the Constitution.

Karen R. Harned, esq. is executive director of the NFIB's Small Business Legal Center.

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Authorities arrest head of Mexico's powerful teachers' union on embezzlement charges

MEXICO CITY –  The head of Mexico's powerful teachers' union was arrested at an airport near Mexico City Tuesday for alleged embezzlement, with federal officials accusing her of using union funds to pay for plastic surgery, to buy a house in San Diego and even to pay her bill at Neiman Marcus.

Attorney General Jesus Murillo Karam said that Elba Esther Gordillo, who has led the 1.5 million-member National Union of Education Workers for 23 years, was detained in Toluca on charges that she embezzled 2 billion pesos (about $160 million) from union funds.

The office didn't say whether Gordillo, a colorful woman long seen as a kingmaker and power-behind-the-scenes in Mexico, was arriving or leaving Toluca airport, or whether she was handcuffed. Murrillo said two other people were also arrested by did not name them.

The arrest of the 68-year-old Gordillo marks the downfall of a woman who rose from being a school teacher to one of Mexico's most powerful political operators, displaying her opulence openly with designer clothes and bags, bodyguards, expensive cars and properties including a penthouse apartment in Mexico City's exclusive Polanco neighborhood. She has been widely lampooned for her many plastic surgeries and depicted in political cartoons as ghoulish.

Meanwhile, Mexico's teachers are poorly paid and public education has long been considered sub-par.

"We are looking at a case in which the funds of education workers have been illegally misused, for the benefit of several people, among them Elba Esther Gordillo," Murillo Karam said.

Gordillo did not respond publicly to the accusations against her and was reportedly en route to Mexico City to appear before a judge.

Her detention came a day after President Enrique Pena Nieto signed Mexico's most sweeping education reform in seven decades into law, seeking to change a system dominated by Gordillo in which teaching positions could be sold or inherited.

Prosecutors said they had detected nearly $3 million in purchases at Neiman Marcus using those funds, as well as $17,000 in U.S. plastic surgery bills and the purchase of a million-dollar home in San Diego.

Assistant Attorney General Alfredo Castillo displayed a series of charts at the press conference with arrows detailing the allegations of illicit transfers from teachers' union accounts to personal accounts in the names of three union workers, Nora Guadalupe Ugarte Ramirez, Isaias Gallardo Chavez and Jose Manuel Diaz Flores, as well as a real estate company.

None were authorized to deal with finances. It wasn't clear if they were among those arrested.

"Between 2008 and 2012, there was systematic embezzlement of union accounts," Murillo Karam said.

Some funds eventually ended up in bank accounts in Switzerland and Liechtenstein. Castillo said that in one case they transferred $1 million to a Swiss account for a company owned by Gordillo's mother. Those funds were then used to buy a million-dollar house in the island of Coronado in San Diego.

The overhaul of Mexico's education system was Pena Nieto's first major proposal since taking office Dec. 1 and was considered a political blow to Gordillo.

Gordillo had organized a string of protests by teachers against the reform, which moves much of the control of the education system to the federal government from the teachers' union. Gordillo was elected to another six-year term as union leader in October.

The reform creates a system of uniform standards for teacher hiring and promotion based on merit instead of union connections. It also allows for the first census of Mexico's education system, which Gordillo's union has largely controlled for decades, allegedly padding the payroll with thousands of phantom teachers.

So great is the union's control that no one knows exactly how many schools, teachers or students exist in Mexico.

For years, she has beaten back attacks from union dissidents, political foes and journalists who have seen her as a symbol of Mexico's corrupt, old-style politics. Rivals have accused her of corruption, misuse of union funds and even a murder, but prosecutors who investigated never brought a charge against her.

She was expelled from Pena Nieto's Institutional Revolutionary Party in 2006 for supporting other parties' candidates and the formation of her own New Alliance party.

Gordillo's arrest recalled the 1989 arrest of another once-feared union boss, Joaquin Hernandez Galicia, known as "La Quina." The longtime head of Mexico's powerful oil workers union, Hernandez Galicia was arrested during the first months of the new administration of then-President Carlos Salinas.

Like Gordillo, Hernandez Galicia's power was believed to represent a challenge to the president, and his arrest was interpreted as an assertion of the president's authority. He was freed from prison after Salinas de Gortari left office.

In 1988, he criticized Salinas' presidential candidacy and threatened an oil workers' strike if Salinas privatized any part of the government oil monopoly, Petroleos Mexicanos, or Pemex. On Jan. 10, 1989, — about a month after Salinas took office — soldiers used a bazooka to blow down the door of Hernandez' home in the Gulf Coast city of Ciudad Madero.

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