Last week, all five members of the National Labor Relations Board participated in issuing a decision normally decided by a three member panel of the Board. In it, recess appointees Sharon Block and Richard Griffin addressed an issue – the validity of the President’s recess appointments – over which they should have recused themselves. All of this does not bode well for those concerned with the hyper-politicization of the NLRB in the Obama Administration. The fact that a decision could not be crafted in a routine case that did not compel all five Board members to participate in it also suggests that the polarization so evident during the closing days of the first Obama Board has carried over into the this second Obama Board.
The decision, issued in Center for Social Change, Inc. and Service Employees International Union (SEIU) involved a “technical” violation of the National Labor Relations Act. It is called a “technical” violation because if an employer wants to challenge a Board finding that the employer has a legal obligation to bargain with the union it must violate the Act by refusing to bargain in order to raise the issue before a circuit court of appeals. The process is as follows: the employer engages in a pro forma refusal to bargain, the general counsel files a complaint followed, shortly thereafter, with a motion for summary judgment and the Board grants the motion with little deliberation.
In Center for Social Change the employer filed opposition to the general counsel’s motion in order to preserve for appellate court review its further argument that the NLRB lacks a legal quorum to act because three of its five board members were unlawfully recess appointed by President Obama in violation of the Constitution. It was on that point that things fell off track.
Because the three recess appointees, Block, Griffin and Terence Flynn, obviously have a personal interest in the outcome of that question and the Board has absolutely no authority to rule on the validity of a President’s recess appointments, they should have simply deferred the issue to the circuit court of appeals for consideration. Flynn and his Republican colleague, Brian Hayes, did just that. The three Democrat members were not similarly restrained which explains how it became a five member decision.
The Board’s Democrat majority held that the President’s recess appointments, as the official act of a public official, are presumed to be regular in the absence of clear evidence to the contrary. For that reason, they held the Board was not without a quorum to act. It is, of course, patently absurd to apply a presumption of regularity when the official act is not regular – the Congress was in session at the time – and it raises a fundamental constitutional question, the scope of the President’s recess appointment authority vis-à-vis the Senate’s right to advise and consent.
The Democrat majority on the NLRB have taken a routine case and transformed it into bell weather that forecasts continued intense partisanship at an agency charged by Congress to remain neutral.