The NLRB held a “meet and greet” on Jan. 12 between lawmakers and the three newly sworn in Board members at the center of the latest NLRB firestorm. Members of Congress were denied the chance to question or even scan the resumes of Richard Griffin and Sharon Block as the two Democrats’ names were only first sent to Congress on December 15, the day before the start of the Senate’s pro forma holiday session. (Republican Terence Flynn was nominated last January.) Less than three weeks after nominating Griffin and Block, on Jan. 3, President Obama lost patience with the process, returning from holiday to invoke his new “We Can’t Wait” doctrine, and seat all three nominees in what just might be his most bald-faced appeasement (to date) of Big Labor. The paperwork filed on the 15th normally triggers a nomination process that includes first a full background check looking for improprieties and all potential conflicts of interest. In fact the rules of the Senate’s HELP Committee demand a five-day waiting period to examine a candidate’s background before any action can be taken on a nomination. (It’s difficult to imagine a more conflicted nominee than Richard Griffin who has served for 17 years on the board of directors for the AFL-CIO Lawyers Coordinating Committee.) This is the biggest difference between a traditional recess appointment, where a fully vetted candidate languishes for months in partisan limbo, and a special emergency “We Can’t Wait” (or what we call a “recess without a recess” appointment), where candidates are sworn into office before a second branch of government can even check their credit report. On January 6 the National Right to Work Foundation filed the first of what will likely be many legal challenges to the appointments, in a joint action with the Coalition for a Democratic Workplace and the National Federation of Independent Business. (The Foundation has consolidated its legal challenge of the appointments with its ongoing challenge of the new workplace posting rules.) “President Barack Obama has already shown time and again that he is willing to abuse his executive authority to force more workers into union-dues-paying ranks,” said Mark Mix, President of the National Right to Work Foundation. “Now Obama’s executive abuse jeopardizes the constitutional balance our country holds very dear, all in the name of paying back his Big Labor benefactors.” These initial challenges have a bit of a legal hill to climb on the issue of standing (since the posting requirement was adopted by a valid quorum of the Board). But that legal hurdle won’t be around for long. As soon as the new Board issues decisions – or regulations – they’ll create a ready supply of new plaintiffs with certain standing. The Wall Street Journal calls the recess appointments a “reckless ploy” and accuses the President of ultimately undermining the Board’s authority with the questionable legality of his actions. Every decision of the new Board will be challenged and potentially all could be overturned en masse if the appointments are found to be unconstitutional. Looking back a year from now, it’s most likely the new Board will have only accomplished one thing with its new dubious “We Can’t Wait” quorum — the injection of even more uncertainty into the country’s business climate when we all can least afford it. As Melanie Trottman of the Journal wrote: “Mr. Obama is claiming an open-ended authority to determine that the Senate is in recess, despite that body’s own judgment and the factual realities. That is an astonishing and, so far as we can tell, unprecedented power grab…It is not up to the president to decide whether the Senate is organized properly or working hard enough.”
