The Details on Obama's Illegal/Unconstitutional Power Grab...

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

By Phil Kerpen Published: 2:03 PM 01/06/2012 | Updated: 2:16 PM 01/06/2012

Mr. Kerpen is vice president for policy at Americans for Prosperity and director of its www.NoInternetTakeover.com project to fight Internet regulation.
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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.

The IUOE is an especially autocratic union that has been criticized by union activists for imposing strict Internet censorship on union members who have the temerity to run against current union leadership. Griffin justified the gag rule as necessary to protect the “union’s sensitive and/or confidential internal workings.” Griffin even tried to impose fines on his own union workers for challenging the gag rule in court.

In 1998 testimony to a House committee, Griffin argued for more expansive NLRB powers to order fines and other remedies, for allowing the board to enforce its decisions without a court order and for allowing unions to organize at single locations. Most significantly, in that testimony Griffin was asked directly whether unions and employers both engage in illegal conduct. He said: “The vast majority of illegal conduct is committed by employers, and therefore the vast majority of charges are addressed to employer conduct.”

Griffin is clearly Becker’s ideological fellow-traveler and can be expected to continue the NLRB’s bureaucratic rewrite of our labor laws to tilt the playing field to union bosses and allow them to rig the rules to force workers into unions and into paying union dues.

The Senate will have a key opportunity to stand up to the NLRB in the near future, when it considers a vote on a joint resolution of disapproval under the Congressional Review Act (CRA) to overturn the recently finalized ambush election rule. This vote will be protected from filibuster under the CRA and will therefore need just 51 votes to pass. If it passes the House and Senate, the president could veto it, but at that point he would have to take full political responsibility for the rule and the rest of the NLRB’s extreme agenda. Most importantly, the vote will tell us where every senator stands on the actions of this dubiously constituted board and its radical agenda.

Phil Kerpen is vice president for policy at Americans for Prosperity and author of Democracy Denied: How Obama is Ignoring You and Bypassing Congress to Radically Transform America — and How to Stop Him.