President Infuriates Business Groups With Recess Appointments to NLRB

See update below

Last month, a story in Politico described the squabbling between business and labor over open seats on the National Labor Relations Board as World War III Over the NLRB.

If it was World War III then, what will it be now that President Obama has side-stepped the U.S. Senate this week and made three controversial recess appointments — two Democrats and one Republican — to fill those opens seats on the NLRB?

According to The Wall Street Journal:

The move sidesteps Senate approvals to prevent the board from all but ceasing to function this year… The appointees include Democratic union lawyer Richard Griffin, Democratic Labor Department official Sharon Block and Republican NLRB lawyer Terence Flynn. The board lost its quorum and much of its decision-making ability on Tuesday when the term of Democrat Craig Becker — an earlier recess appointee — expired. These appointments allow it to fully function again. The moves return the board to its full slate of five members for the first time since August 2010.

A key role of the board is to supervise union elections and referee disputes between the nation’s private-sector employers and employees, in part by deciding cases brought to the agency. Without a quorum, the board can’t rule on cases or create major new regulations.

Last year, the board passed a rule that would make it harder for employers to stall union-organizing elections. Another measure it took would require employers to post a notice informing workers about their right to join a union.”

Was the Senate actually in recess?

One big question about these appointments is whether the Senate was actually in “recess,”  and whether the president is setting the stage for a Constitutional battle with the Senate over them.

As USA Today wrote:

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Senate Minority Leader Mitch McConnell noted Obama announced the nomination of two of the NLRB appointees — Sharon Block and Richard Griffin — two days before the Senate was scheduled to adjourn last month. The White House says Obama has made 28 recess appointments, compared with 61 made by President George W. Bush at the same point in his first term, and the NLRB appointments were necessary for the board to reach quorum.

“What the president did today sets a terrible precedent that could allow any future president to completely cut the Senate out of the confirmation process, appointing his nominees immediately after sending their names up to Congress,” said McConnell, who also questioned the legality of the appointments. “This was surely not what the framers had in mind when they required the president to seek the advice and consent of the Senate.”

Sarah Binder, a governance expert at the Brookings Institution in Washington, said that the Constitution doesn’t define what a recess is. She noted the courts found ambiguity on the issue when Sen. Ted Kennedy, D-Mass., unsuccessfully challenged President George W. Bush’s 2004 recess appointment of William Pryor to the 11th Circuit Court of Appeals.”

Business groups furious at president’s decision

Business groups have complained that because the NLRB has had a majority of pro-labor board members, it has been able to push through a number of anti-business rulings that labor groups had been unable to get through the Congress. As Politico put it,

Critics on the right contend the NLRB has a left-leaning, activist agenda, evidenced by its approval of a rule making it easier for labor unions to organize the workplace and a decision contending that Boeing sought to punish organized workers in Washington state by building an assembly line in South Carolina, a right-to-work state…

Fred Wszolek, spokesman for the Workforce Fairness Institute, an anti-labor activist organization, called Obama’s move “an incredible giveaway to Big Labor. This White House has demonstrated beyond question that it places greater importance on paying back union bosses than creating jobs and turning around the economy.

But AFL-CIO President Richard Trumka, whose relationship with Obama has seen strains, praised the president in a statement for “exercising his constitutional authority to ensure that crucially important agencies protecting workers and consumers are not shut down by Republican obstructionism. Working families and consumers should not pay the price for political ploys that have repeatedly undercut the enforcement of rules against Wall Street abuses and the rights of working people.”


UPDATE: President Obama’s recess appointment of three new NLRB board members has now become an issue in the presidential campaign. The Los Angeles Times reports today that Mitt Romney, campaigning in New Hampshire in advance of next week’s primary election, criticized the president’s decision and called the new NLRB board members “union stooges.”

Republican presidential frontrunner Mitt Romney brushed aside his party challengers yet again Thursday to deliver a blunt general election assault on President Obama, calling him a “crony capitalist” who had put “union stooges” on the federal board that oversees the workplace…

“Capitalism, free enterprise, works. Crony capitalism does not,” Romney said, raising the subject repeatedly during a one-hour gathering of supporters at a local Boys & Girls Club. This president has engaged and is engaging in crony capitalism,” Romney said, adding that Obama had directed government resources to benefit “the big unions that helped out his campaign.”

Romney specifically scored Obama’s appointment on Wednesday of three members to the National Labor Relations Board. The appointments had been stalled by Senate Republicans who said the appointees were too sympathetic to organized labor. Obama made the appointments unilaterally using his power to fill vacancies during congressional recesses. (Republicans countered that they are not in recess and the dispute appears headed for the courts.)”

John Hollon is managing editor of Fuel50, an AI Opportunity Marketplace solution that delivers internal talent mobility and workforce reskilling. He's also the former founding editor of TLNT and a frequent contributor to ERE and the Fistful of Talent blog.