Representative Miller’s Misleading Defense Of Obama Labor Board

By Fred Wszolek

Congressman George Miller, Ranking Member on the U.S. House Education and Workforce Committee issued an inaccurate and incomplete press release earlier today.  It said, in part: “While this battle [over the National Labor Relations Board’s authority to issue decisions] garners headlines inside the beltway, often overlooked is how attempts to shut down the NLRB is impacting Americans it is tasked to protect.  Since the NLRB is the only place where workers can go to have their rights enforced (they cannot go directly to federal court), some interest groups and Washington Republicans have obstructed the NLRB’s mission through the courts and blocked appointments to the board.”

With all due respect to Congressman Miller, the courts are not obstructing the NLRB, they are protecting the public, workers, employers and unions, from arbitrary, capricious and unlawful agency action.  The courts have properly halted implementation of the Board’s notice posting rule, stopped the Board’s “quickie” or “ambush” election rule and overturned case after case which were incorrect on the facts or the law.

Furthermore, the commotion in labor law over the question of the NLRB’s authority to act is a direct result of President Obama’s abuse of his recess appointment authority.  He made three so-called “recess” appointments to the Board, while the Senate was in session.  The President made these appointments only days after he nominated them – they clearly were not blocked – and before the nominees had time to respond to a routine but important Senate questionnaire inquiring into their backgrounds.  One of these recess appointments is Richard Griffin, who was named a few months ago in a civil racketeering law suit.  While we believe in one’s innocence until proven guilty, workers, employers and unions have the right to have members on the NLRB who have been properly vetted and are above reproach.  Questions as to Mr. Griffin’s integrity should have been asked and answered before he was placed on the Board, not in independent litigation taking place after.

The Congressmen is plain wrong when he accuses the other party of “block[ing] appointments to the Board.”  The only Obama nominee to the NLRB who was not allowed to advance was Craig Becker, whose nomination was defeated by a bipartisan Senate filibuster because of views which were considered outside the mainstream.  And extreme they were.  He participated in decisions that stripped workers of their right to challenge with a secret ballot election their employer’s voluntary recognition of the union by card-check and he was the architect of a decision that authorized the creation of “micro-unions” which threaten to balkanize the workplace and undermine collective bargaining to the detriment of all who are regulated and protected by the Board.

But where was Congressman Miller when the Senate Democrats blocked President Bush’s nominees to the NLRB and refused to recess preventing him from making recess appointments?  For 28 months the Board was kept at two members who were unable to issue a major decision, and there were a slew of major decisions pending before the Board that were four, six and eight years old.

Furthermore, the Congressman uses his words carefully but nevertheless somewhat misleadingly when he writes “hundreds of past recess appointments would be deemed unconstitutional under the court’s unprecedented test.”   The D.C. Circuit Court decision, if upheld by the U.S. Supreme Court, will not be made applicable to other presidents or their recess appointees.  The Supreme Court does not permit parties to go back and raise such collateral attacks.

Finally, the court’s test is only as “unprecedented” as the U.S. Constitution is “unprecedented.”  The Framers did not give unilateral appointment authority to the President, it is shared with the Senate.  And the President’s recess appointment authority is strictly limited, it is the exception to the general rule of how appointments are to take place.  This was to prevent a presidential spoils system and the appointment to high office of “unfit characters,” persons whose only qualification was a political contribution to the President or their family’s wealth or connections or ties to organized labor for that matter.

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