The Corner

Recess at the NLRB

What’s the difference between a defendant’s sister on the jury and a committed member of the labor movement on the National Labor Relations Board (NLRB)? Answer: The defendant’s sister is more apt to be impartial.  

Being impartial no longer fits the job description for a member of the NLRB, at least if you are a Democrat. In fact, it disqualifies you. With the continuing loss of union density in the private sector, organized labor looks to members of the NLRB to augmentunion power and stack the deck to favor a union outcome. And with hundreds of millions of dollars in campaign contributions given to Democrats, they get their way. It was for this reason that President Obama gave Richard Griffin and Sharon Block, two union advocates, unprecedented and constitutionally suspect recess appointments.  

It was outrageous enough that the president acted while the Senate was in session — using a technique invented by Sen. Harry Reid to prevent President George W. Bush from making recess appointments during his last year in office. But the appointments of Griffin and Block were even more egregious: they were nominated on December 15, just before the Senate adjourned for Christmas, and were “recessed” 18 days later, just after the New Year. Both nominees were sworn into office without even completing the Senate committee’s questionnaire inquiring into their potential conflicts of interest.    

These recess appointments are terribly wrong.

Not surprisingly, the secretary of labor, the president of the Service Employees International Union, the Washington Post, and the recently-departed former chairman of the NLRB, Wilma Liebman, have defended the “recess” appointments. According to this orchestrated chorus, the recesses were necessary to prevent “shutting down an independent federal agency.” Nonsense. Terry Flynn’s nomination was made a full year before, he was fully vetted by the Senate and could have been promptly confirmed obviating the need for any recess appointments. Or the president could have nominated Griffin and Block in September or October, giving the Senate sufficient time to engage in an orderly confirmation process.

The hypocrisy of it all is corrosive. Big Labor and their allies did not complain when Senator Reid kept the Senate in session to deny President Bush the opportunity to make recess appointments. And Bush’s nominations to the NLRB had been stalled for months. They were being denied a committee vote because the AFL-CIO and SEIU wanted to prevent a Republican-controlled, ideologically neutral board from issuing major board decisions. For the next 28 months, they were able to accomplish just that. Major Board cases that had been pending for 5, 8 and 10 years were left undecided. To his credit, President Bush led the nation honorably: He refused to name recesses in contravention to the long-standing interpretations of the Recess Clause given it by modern presidents with theconcurrence of the Senate. 

In stark contrast is President Obama’s carefully calculated circumvention of the Senate’s confirmation process, which strongly suggests that his appointments to the NLRB will not be impartial.

Richard Griffin’s immediate prior employment should have disqualified him. 

George Meany, the formidable former president of the AFL-CIO, was opposed to the appointment of union-side or management-side labor lawyers to the NLRB. He was of the principled view that lawyers who had represented either unions or employers could not “possibly” be objective. He shared the views of the Congress that passed the original National Labor Relations Act, which expressly rejected the idea of partisan appointments in favor of a board of “impartial government employees.” If Meany was opposed to private practitioners who have had unions or employers as their clients from taking a seat on the board, he most certainly would have opposed the appointment of lawyers such as Richard Griffin who, until his recess, was the general counsel of one of the country’s large labor unions — the International Union of Operating Engineers.

And for good reason. Even if Griffin could perform neutrally, a highly doubtful proposition in light of the pressures to perform put on Democratic nominees by organized labor, his immediate prior employmentraises an appearance of partiality that will undermine public confidence in the fairness of his decisions and should have been disqualifying. 

Craig Becker was the first person to be nominated for a full board term to come directly from organized labor — Griffin is the second. Before the Obama administration, no one would be nominated for a full board term who came directly from a union or employer organization without working in the interim in a neutral capacity. 

Becker’s board service, which has mired the board in controversy since it began, is ample evidence for the wisdom of this practice.  During hearings on his nomination, Becker swore he would be impartial. While I have no reason to doubt the sincerity of his Senate testimony, he has been anything but impartial. 

Sharon Block’s suitability for a position on the board has not been established.

Sharon Block, who worked as labor counsel for a one of the Senate’s most partisan union supporters, the late Senator Edward Kennedy, has a reputation for seeing labor issues through a union lens.#more# Her unprecedented recess appointment deprives the Senate of an opportunity to determine whether she is capable of serving impartially.

While a senior staff attorney at the NLRB, Block worked closely with former chairman Liebman. Liebman has publically expressed the view — contradicting that of the Supreme Court — that a board member need not be neutral on the question of unionization when applying the law. Block’s recess appointment deprived the Senate of the opportunity to discover whether Block agrees with the former chairman.

As a former senior NLRB staff attorney, Block played an intimate role in some major board decisions. Her ability to impartially weigh the facts and apply the law would be evident from her professional writing and the written work she provided the board in cases in which she was involved. But by choosing to make a recess appointment, Obama short-circuited the Senate’s ability to review Block’s work and determine whether they contained objective statements of the facts and the applicable law. 

The appointments will further undermine business confidence and inhibit job creation.

Capital formation and business investment depend on, and respond favorably to, stability in the law. President Obama’s unprecedented and unnecessary recess appointments of Griffin and Block to the NLRB sends two clear messages to American business. First, the radically partisan anti-business transformation of American labor law under the Obama administration is likely to continue. And second, elections matter.

— Peter Schaumber is a former chairman of the National Labor Relations Board.



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