WASHINGTON – Raising the specter of legal chaos in labor-management relations, the ruling Republicans on the highly partisan House Education and the Workforce Committee blasted President Obama’s three recess appointments to the National Labor Relations Board.
And to bolster their case at the Feb. 7 hearing, they called in a hand-picked past Reagan administration Justice Department official to testify that Obama couldn’t name the new board members as recess appointees because the Senate wasn’t in recess.
At issue is Obama’s Jan. 4 seating of Democrats Sharon Block and Richard Griffin – a longtime union general counsel – and Republican Terence Flynn to three vacant NLRB seats. Without the new members, the five-person board could not function.
Obama appointed them while the Senate was out of session for three days. The Senate has been coming back for pro forma sessions, usually with one senator calling the meeting to order and another moving to adjourn, and taking at most a few minutes. But technically, the Senate was in session, said Charles Cooper, who served as the Reagan administration’s assistant attorney general for legal counsel.
“The president’s recess appointments had nothing to do with whether the Senate was available to act and everything to do with the Senate’s unwillingness to confirm the president’s nominees,” Cooper told the representatives, whose committee has no power over NLRB appointees – except to complain.
“As with every branch of our government, there is ‘hydraulic pressure’ within the executive ‘to exceed the outer limits of its power,'” Cooper said, quoting a Reagan-era Supreme Court decision. “Regardless of whether the president has sought to exceed his power for good or ill, it is Congress’ constitutional responsibility to resist him.”
Cooper’s comments gave the GOP license to blast Obama, and they did so. With cooperation of Cooper and two of the other witnesses, the Republicans said if courts rule in the future that Obama’s recess appointments were invalid, then all the board rulings would be invalid, too. That could cause chaos in management-labor relations, they said.
Left unsaid by the GOP was the fact that without the recess appointees, the NLRB would have only two members and could not function anyway – an objective of the right-wing majority, especially on the committee, and their business backers.
The lone Democratic-called witness, Susan Davis, current chief counsel for AFTRA and a counsel for the New York State Nurses Association, reminded the lawmakers the NLRB needs a quorum to function, and needs the three new members.
“The NLRB, without a full complement of board members, would be incapable, not only of protecting workers’ rights, but of administering the federal labor laws that protect workers, employers, and the public interest,” said Davis who has also represented Teamsters, Laborers, Airline Pilots, Steelworkers, Letter Carriers, Autoworkers, and other unionists.
“The National Labor Relations Act protects the rights of workers, whether they are in a union or not, to join together in order to have a voice in their workplace. The act protects workers against employer discrimination or retaliation if they opt to exercise these and other rights, and it also guarantees workers the right to refrain from engaging in union activities,” she said.
But the law needs a functioning NLRB to enforce it, she added. “The president’s inability to make additional board appointments would have prevented the board from enforcing the act and ensuring the worker protections it has guaranteed for more than 75 years.
“To deny the board the ability to function by disabling the president’s ability to appoint board members would eviscerate workers’ rights” under the act. “Not only would workers lose rights and protections they desperately need, but both workers and employers would lose the guidance and decision-making finality that a board decision brings,” Davis warned.
The GOP ignored the practical impact Davis cited. It didn’t want the Obama nominees – even if one of them is a Republican – on the board at all. Committee Chairman John Kline, R-Minn., dragging out the usual party rhetoric, said Obama acted “to further Big Labor’s agenda.”
He called Obama’s NLRB appointments “extraordinary action that stretches the limits of his office and undermines our all-important system of checks and balances. I realize that in many ways the appointment process is broken. However, no president should endorse an unconstitutional scheme in order to address a political problem.
“Thanks to the president’s action, three scarcely known individuals are now empowered to dramatically transform our nation’s workforce,” Kline complained. “The highly controversial nature of the appointments guarantees the rules and decisions the new board members adopt will be constitutionally suspect and legally challenged.
“Even the president’s own Justice Department, in what I would characterize as an understatement, noted that the issues surrounding these appointments ‘create some litigation risk.’ Every action taken by the board will be tainted,” he contended.
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