Opinion

Obama’s illegal NLRB appointments are even more outrageous than his appointment of Cordray

Photo of Phil Kerpen
Phil Kerpen
President, American Commitment

Obama’s tightly choreographed media blitz around the historic non-recess appointment of Richard Cordray was designed to disguise a reckless, lawless and unconstitutional action — a purported “recess appointment” while the Senate is clearly still in session — into a virtuous, bold move. And to the president’s far-left supporters, surely it will be seen as just that.

But another special interest in the Democrats’ corner was served later in the day, more quietly. Union bosses won a big victory when the president made even more outrageous non-recess appointments to pack the National Labor Relations Board (NLRB) with union lawyers. That action deserves the same scrutiny as the Cordray move, if not more.

Republicans never obstructed the two Democrats Obama installed on the NLRB. They couldn’t have even if they wanted to; Obama only named them as nominees on December 15, less than three weeks before he made the move. The nominees never even filed the normal paperwork with the Senate Health, Education, Labor, & Pensions (HELP) Committee. They didn’t undergo background checks. They didn’t submit questionnaires. They didn’t meet with a single Senate Republican.

Moreover, less than two years ago the Supreme Court heard the case New Process Steel v. National Labor Relations Board, in which the court rejected the argument that the NLRB can operate with just two members, the number it again had at the end of 2011 with the expiration of the recess appointment (the real kind, during a Senate recess) of Craig Becker. Becker, of course, had been rejected by the Senate because of his work as the associate general counsel of the SEIU and the AFL-CIO and his longstanding support for outlandish legal theories under which the NLRB could completely rewrite labor law to favor unions without congressional authorization. He most infamously wrote that “Employers should be stripped of any legally cognizable interest in their employees’ election of representatives.”

With Becker in place, the NLRB last year greatly shortened the timetable for union elections to allow union organizers to ambush employers with surprise elections, approved so-called micro-unions to allow organizers to cherry-pick very narrow classes of workers to get a foot in the door and took away the right of workers to demand a secret-ballot election when employers collude with union organizers to forego one.

The radical agenda of the NLRB stalled out when Becker’s recess appointment expired. When Congress refused to go into recess to block similarly outrageous appointments, Obama had no way to reward the union bosses who control the money and manpower that are critical to his re-election. So, under cover of the high-profile and politically charged Cordray nod, Obama installed two completely unvetted union lawyers, Sharon Block and Richard Griffin, to continue Becker’s work. (He also installed Republican Terence Flynn, who had been stalled for a year by Senate Democrats.)

The little we know about Block and Griffin is not encouraging. Block was a longtime staffer for Senator Ted Kennedy, and is almost certainly a lockstep vote for the Becker agenda of upending employer rights.

Griffin has the dubious distinction of being the second board member ever (Becker was first) to join the NLRB directly from a labor union. In Griffin’s case, it’s the International Union of Operating Engineers (IUOE), where he was general counsel.