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Obama defies lawmakers with recess appointments to NLRB

By Kevin Bogardus - 01/04/12 06:35 PM ET

President Obama will recess-appoint his nominees to the National Labor Relations Board (NLRB), bypassing a likely filibuster from Senate Republicans to keep the controversial agency operating in 2012.

The president will use recess appointments to install Sharon Block, Richard Griffin and Terence Flynn as NLRB members. Block and Griffin are Democrats, while Flynn is a Republican.

“The American people deserve to have qualified public servants fighting for them every day — whether it is to enforce new consumer protections or uphold the rights of working Americans," Obama said in a statement. "We can’t wait to act to strengthen the economy and restore security for our middle class and those trying to get in it, and that’s why I am proud to appoint these fine individuals to get to work for the American people.”

The NLRB announcement came a few hours after the president made a public show of another recess appointment, for Richard Cordray, the new director of the Consumer Financial Protection Bureau. Republicans reacted with fury to that appointment, which the White House promptly ignored by making three more.

Senate Minority Leader Mitch McConnell (R-Ky.) blasted the president’s decision and said he is stripping the Senate of its oversight powers, since the NLRB nominees had not been vetted in a hearing.

“What the President did today sets a terrible precedent that could allow any future President to completely cut the Senate out of the confirmation process, appointing his nominees immediately after sending their names up to Congress,” McConnell said in a statement.

The NLRB appointments are a huge victory for Obama’s union allies, which urged the president to use any means necessary to keep the NLRB functioning. Without additional members, the NLRB would have lacked the three-member quorum needed to issue rules and regulations.

Unions had been frustrated by the president’s moves on trade and regulations in 2011, and the NLRB appointments could help wipe the slate clean ahead of the 2012 campaign.

But the move also puts Obama at odds with business, which has clashed repeatedly with the NLRB in recent months. Bruce Josten, the chief lobbyist for the U.S. Chamber of Commerce, denounced the recess appointments as political favoritism and said they will “further poison the well” at the labor board.

The president is wading into uncharted waters with the appointments, made while the Senate is holding pro forma sessions. Dave Hirschmann, a top official with the Chamber, said a court battle over the constitutionality of Obama’s action is a near certainty.

The labor board has come under fire from GOP lawmakers and business groups for a number of decisions, most notably a complaint against Boeing last year for allegedly retaliating against union workers.

Critics argue the Boeing complaint and other actions by the NLRB, such as proposing a regulation to speed up union elections, are an abuse of the board's authority. The House has passed legislation that would limit the labor board’s legal powers, and GOP senators have promised to block nominations to the NLRB.

The GOP’s blockade of NLRB nominees would have prevented it from issuing rules and regulations, since it needs at least three members to form a quorum. The recess appointment of Craig Becker expired Tuesday, leaving the NLRB with only two members.

With Block, Flynn and Griffin now members of the NLRB, the labor board is up to its full roster of five members.

Republicans tried to prevent recess appointments by keeping the Senate in pro forma session over the holiday break, but the White House said that maneuver is meaningless.

“Gimmicks do not override the President’s constitutional authority to make appointments to keep the government running,” White House Communications Director Dan Pfeiffer said in a blog post Wednesday.

Lawyers for several business groups immediately began to explore their legal options to challenge the recess appointments.

“We are considering all possible legal recourse. We believe it's clear the president has violated decades of precedent and possibly the Constitution,” said Geoff Burr, vice president of federal affairs for the Associated Builders & Contractors.

Burr is chairman of the Coalition for a Democratic Workplace. The coalition is suing the NLRB over its proposal to speed up union elections, as well as another rule requiring employers to post notices informing workers of their organizing rights.

Other business lobbyists were also mulling legal action.

“The NAM will consider all options to put a halt to this, including pursuing legal action,” said Joe Trauger, vice president of human resources for the National Association of Manufacturers.

Democrats on Capitol Hill said the NLRB recess appointments were needed.

“By appointing these nominees, President Obama acted responsibly in order to ensure that the workers and businesses across the country who rely on the stable functioning of this important agency would not be caught in the crossfire of the Republicans’ misguided ideological battle,” said Sen. Tom Harkin (D-Iowa), chairman of the Senate Health, Education, Labor and Pensions Committee, in a statement.

AFL-CIO President Richard Trumka hailed Obama's move as a victory for workers.

"We commend the President for exercising his constitutional authority to ensure that crucially important agencies protecting workers and consumers are not shut down by Republican obstructionism. Working families and consumers should not pay the price for political ploys that have repeatedly undercut the enforcement of rules against Wall Street abuses and the rights of working people," Trumka said in a statement.

James Callahan, president of the International Union of Operating Engineers, where Griffin was general counsel, said Obama recess-appointing Griffin to the labor board was the right move.

“Richard is highly respected by lawyers on both the labor and business side of labor law. His fair-minded approach to legal questions is exactly what the NLRB needs,” Callahan said in a statement. “Some Republican members of the Senate have made a determined effort to cripple the NLRB and other government agencies by refusing to act on President Obama’s nominees, no matter how qualified. Leaving the NLRB without a quorum would penalize both labor and employers.”

http://thehill.com/business-a-lobbying/202407-obama-recess-appoints-his-nominees-to-controversial-labor-board

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