NLRB is STILL Operating Without a Confirmed Quorum!

-Megyn Kelly’s Interview Today with Lou Dobbs on FoxNews-

Obama  Has  Nominated  Same  Two  Candidates  Properly

This is a follow-up to a previous article on my blog.¹  President Obama has decided to renominate Sharon Block and Robert Griffin for positions on the National Labor Relations Board – something  he was required to do because his previous actions when Congress was in “pro forma” session starting in late December 2011 were
ruled unconstitutional by the D.C. Circuit Court recently..²

However,  President  Still  Has  NLRB  Making  Decisions  Without  a  Quorum

That in of itself is a good thing.  But, dear readers, please do not be enamored with the President’s motives.  The NLRB is to be composed of five members.  It currently has three, but only ONE is there legitimately (with Senate confirmation).  Megyn Kelly noted that the Administration has not formally appealed the D.C. Court’s ruling; the net result is that the NLRB is operating when it shouldn’t be.

Unfair  to  Unions  and  Businesses  Affected  by  200+  Decisions

Despite the ruling that Obama’s January 2012 move was unconstitutional, he still has the NLRB going about its business.  As Lou Dobbs noted, “He doesn’t have much regard for checks and balances.”  (Not news to us, but should be reaffirmed periodically just in case part of Obamination is open to spiritual renewal.)

The Circuit Court’s decision means that the previous 200 decisions by the NLRB are in question, yet Obama has it “operating under his own fiat” (Dobbs).  To make the situation worse, the panel has made an additional 26 decisions since then.  These would have to be added to the original 200 to be retried should the Supreme Court uphold the Circuit Court’s ruling, a distinct possibility.

Dobbs, not in a particularly good mood due to the President’s shenanigans, stated simply that Obama is essentially telling everyone “to go to hell.”  That aptly describes where our national hand basket has been headed for the last four years.

 

¹ – “Obama Plays Cat and Mouse with Congress and His NLRB Appointments,” www.CartaRemi.wordpress.com, 1/28/2013
² – “pro forma” session is when “a senator would gavel an empty chamber to order every few days and then recess again. (David Jackson, USA Today article printed in the Cincinnati Enquirer, 1/26/2013)  My note: The Senate did this because the President deliberately nominated these two just before Congress was to recess for the holidays in 2011.  Wishing to stop this sham, the Senate employed a legal practice of remaining in “pro forma session,” thus blocking Obama’s attempt to act because they knew he would later claim that Congress was not in session forcing him to use his authority (which he did).  The D.C. Circuit Court of Appeals disagreed with him last month.

Obama Plays Cat and Mouse With Congress And His NLRB Appointments

USA Today  and  ABC News  Try  Spins  to  Make  President  Appear  as  the  Victim

At least 59 million¹ people were not surprised last week when “the United States Court of Appeals brought the president back to Earth and reminded him that the Constitution’s Appointments Clause and the U.S. Senate are very much part of reality by voiding three of Obama’s recess appointments to the National Labor Relations Board.”²

Background

This latest attempt by Obama to bypass Congress occurred last January when he made three appointments to the NLRB, replacing members whose terms had expired, and also named Richard Cordrey to head the Consumer Financial Protection Bureau ”while the Senate was away on its Christmas holiday.”³  Well, sort of a holiday.  A USA Today article stated the Republicans who were involved in the lawsuit “said the chamber stayed in a ‘pro forma’ session during the time in question denying Obama the right to make recess appointments… In these ‘pro forma’ sessions, a senator would gavel an empty chamber to order every few days and then recess again.”^4,5,6

The ABC News blog carried this quote: “Congressional dysfunction and congressional obstructionism,” was the way Washington College of Law Professor Stephen Vladeck described the actions of the Republican Senators.  He went on to say, “I think the point is that Congress should not be actively trying to thwart the president’s appointment power.”⁷

Wow, makes the Republicans look like spoiled sports.  But, not so fast!  Let’s take a big picture look at this on-going battle in our nation’s capital.  The members of the NLRB had terms with expiration dates, so their departures were known well in advance.  The President knew he would be in for more good fights during the approval process of any of his nominees.  The inherent philosophical differences between the Chief Executive and the Republicans had been aggravated by several NLRB decisions in 2011.^8,9

The  President’s  Rationale  and  Republicans  Countermove

So, Obama figured he could get around one of his main inconveniences in life (Congress) and announced his nominees on December 15, 2011 or just before Congress was scheduled to leave for the holidays.  On January 4, 2012, the President declared he had the authority to act because he claimed Congress was in recess, when in fact, it had decided to trump the President’s move by declaring itself to be in “pro-forma” session.

Nevertheless, Obama said his nominees were now on the Board with, “But when Congress refuses to act, and as a result, hurts our economy and puts our people at risk, then I have an obligation as President to do what I can without them.”¹⁰  This is a very interesting statement in view of the fact that even eight days later, Congress had still “not received financial or tax data, biographic information, records of campaign contributions, or information about potential civil or criminal judgments or conflicts of interest,”¹⁰ which are essential to the approval process.

Now  What?

The three judge Court of Appeals panel (all appointed by Republican presidents) had declared that Congress was officially in session when the President made his appointments.  It also held that the recess appointment procedure may be used only if the vacancies occurred while Senate is in its annual recess between sessions.  The Administration plans to appeal to the Supreme Court.  If it is not able to have the Appeals panel’s decision overturned, then all decisions by the NLRB since the January, 2012 appointments would be invalid for lack of a quorum.  In addition, the NLRB could not act until this issue is resolved as it would only have one duly appointed and confirmed member.³ 

In the mean time, we can relax and replay statements from both sides.  White House spokesperson Dan Pfeiffer wrote last January, “Republican Senators insisted on using a gimmick called ‘pro forma’ sessions, which are sessions during which no Senate business is conducted and instead one or two Senators simply gavel in and out of session in a matter of seconds. But gimmicks do not override the President’s constitutional authority to make appointments to keep the government running.”⁷

However, the court disagreed and cited a 1976 case on campaign finance law: “Allowing the president to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers. The checks and balances that the Constitution places on each branch of government serve as ‘self-executing safeguard[s] against the encroachment or aggrandizement of one branch at the expense of the other.’”  And Sen. Orrin Hatch (R-Utah) noted that the court’s ruling, “will go a long way toward restoring the constitutional separation of powers.”⁷

Stay tuned for the next exciting round!

¹ – Approximate number of voters supporting Mitt Romney in the 2012 election, www.politico.com, 11/29/2012
² – Lloyd Green, www.FoxNews.com, 1/25/2013
³ – Rick Ungar, www.forbes.com, 1/25/2013
⁴ – David Jackson, USA Today article printed in the Cincinnati Enquirer, 1/26/2013
⁵ –  From www.archives.gov>charters, Article II Section 2, second paragraph of the U.S. Constitution declares that the President shall appoint specific and “all other Officers of the United States” with the approval of Congress.  The next paragraph also states, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
⁶ – This legal matter started when an NLRB decision went against a family owned business in Washington state.  It argued that the NLRB’s decision was invalid as it did not have a quorum when the decision was made.  This was based on the charge that the Senate was not in recess when the President made his appointments to the Board. (same source as footnote #3)
⁷ – Sarah Parnass, www.abcnews.go.com, 1/25/2013
⁸ – The Machinists union had filed an unfair labor complaint against Boeing when it moved part of its 787 Dreamliner production to South Carolina, a “right-to-work” state.  When Boeing eventually agreed to a contract with the union members in Washington state, which included guaranteeing the production of the new 737MAX there, the union considered “it to have resolved our issues with Boeing,” according to the union’s spokeswoman Connie Kelliher.  The NLRB followed by dismissing its complaint against Boeing. (Amy Bingham, www.abcnews.go.com, 12/9/2011)
⁹ – And there was the issue of “fast-track union elections” which the NLRB pushed through in Obama-like fashion in December, 2011 but was overturned six months later. “On Monday, May 14, 2012, a federal judge ruled in favor of the U.S. Chamber of Commerce’s request that the quickie elections rules be invalidated. Although a number of issues were raised in the case concerning the NLRB’s rule making power, the court ruled only on the question of whether a quorum was present when the Board adopted the rules.”
“The quorum issue is more complex that would appear on its face. The Board sometimes acts through ‘electronic’ proceedings. One Board member, Brian Hayes, the Board’s sole Republican, did not take part in the December 16, 2011 NLRB electronic vote to adopt the final rule. Hayes only had a matter of hours to vote on the rule since it was posted for final action on the day it was adopted. The court ruled that since Hayes did not affirmatively take a position on the proposed rules, nor indicate that he was abstaining, there was no indication that he participated in the decision. Without his participation, the Board lacked the required quorum.” (Barry M. Willoughby, www.delawareemploymentlawblog.com, 5/18/2012)
¹⁰ – www.realclearmarkets.com, 1/12/2012

Unions Are Necessary For Balance of Power, “Right-to-Work” Laws Instill Fairness

Yesterday’s passage of a “right-to-work law” in Michigan produced civil displays of emotion in Lansing. Their “enthusiasm” has been exceeded only by those demonstrations commonly seen across the state when Detroit wins a championship… but in this case, the driving force was losing, not winning.  The issue at hand, a “right-to-work law,” means that workers are prohibited from having to pay union dues as a condition of employment.¹

Michigan is the 24^th state to do this according to several news sources.  However, in a state which prides itself with a long history of thriving unions, this was a culture shock.  James Hoffa (son of the late union leader Jimmy Hoffa) said prior to the vote, “Let me tell the governor and all those elected officials who vote for this shameful, divisive bill – there will be repercussions.”  On the other hand, Reuters also reported that “Republican Representative Lisa Lyons said during the debate in the House that such laws were not an attack on unions. ‘This is the day Michigan freed its workers,’ she said.” ²

The new law will not go into effect until ninety days after the end of the legislative session and will not impact current existing labor contracts.²   Nevertheless, the battle lines have already been drawn and some options exist, including a possible referendum.

History

Management vs. Labor and Labor vs. Management.  The conflicts have been occurring since humans began working for other humans, voluntarily or otherwise.  The success of any relationship is dependent on the potential for an equitable give-and-take, amicably if possible.  There must be some sort of balance of power between the two entities.  This balance may come from a natural division of advantages each has over the other or might require the intervention of a third party.

Historically, it’s evident that each side in business situations is capable of running roughshod over the other.  In the late 19^th century, the advantage was so blatantly in favor of management that union pioneers like Samuel Gompers (cigar workers) literally had to take up the fight to achieve a semblance of fairness for the work force.

Prior to that, Presidents Jackson (1834, construction of Chesapeake and Ohio canal), Hayes (1877, violent rail strikes) and Cleveland (1894, Pullman strike) had sent troops to control labor’s uprisings against bad work situations. ³  By the 1960’s, labor had the upper hand in many companies which greatly impeded the possibility of sensible decisions by management.

In succeeding decades when the national economy improved, the influence of labor unions decreased as they were decertified or were unable to organize workers in new locations.  Their loss of revenue quickened even with the existence of the aforementioned requirement that all employees of firms with union representation were required to pay union dues.

Current

Unlike the earliest days of management/labor bargaining, federal laws are in place which protect all workers, not just unionized.  For example, management is not permitted to restrict workers’ attempts to organize.  The National Labor Relations Board (NLRB) ensures that such laws are enforced.  OSHA (Occupational Safety and Health Administration) has numerous standards which must be implemented in work places, procedures protecting workers’ rights to report violations, etc.

“Right-to-work” laws bring opposing views face-to-face literally.  Organized labor is concerned that these laws will further reduce union membership; thus, weakening its bargaining power evens more.  It also claims that these laws do not increase job opportunities as the proponents claim.  Those promoting “right-to-work” say that it creates a more stable and fairer management/labor balance which produces more reasonable wage/benefit levels.  The resulting level playing field encourages investment leading to more employment – a priority of organized labor.

Conclusion

Human nature requires a balance of power for any relationship to thrive.  Even major league baseball began to understand this in the 1960’s when it instituted the amateur draft and established the maximum number of times a player could be sent to the minor leagues after which he would be available to other teams.  This prevented the wealthiest teams from securing an unfair advantage by hoarding players and keeping them stuck in their organization forever.

Management should not have a monopoly on decision-making affecting workers’ lives.  As the Catholic Church recognizes, unions have a role, “not only in negotiating contracts, but also as ‘places’ where workers can express themselves.” ⁴

Each hourly worker must have the right to choose to be organized or not.  No one should be coerced into joining a union nor should anyone be intimidated into not joining.

Understanding all of this, it becomes clear that the absence of “right-to-work” laws would be a contradiction to fairness.  If a specific union represents the obvious advantage of representing workers’ rights, then the union should not need a law requiring membership.  The worker will readily recognize the value of joining it.

¹ – Sean Sullivan, The Washington Post, posted12/10/2012 at 10:48AM
² — Bernie Woodall, Reuters, posted 12/11/2012 at 6:28PM
³ – U.S. Department of Labor, Monthly Labor Review, October 1975 article by Jonathan Grossman
⁴ – United States Conference of Catholic Bishops, 2005 Labor Day message quoting the late Pope John Paul II in his Centesimus Annus, #7