LaborPains.org

President Obama has re-nominated two members that he had previously, and unconstitutionally, appointed to the National Labor Relations Board (NLRB) in January  2012. Sharon Block and Richard Griffin, first nominated in late December 2011, were never properly vetted by the Senate and were “recess” appointed while the Senate was still in session. The D.C. Circuit Court of Appeals has since ruled that the appointments were not proper.

Despite that ruling, the NLRB has been hearing and deciding cases. Because the Obama appointees are improper, that means that there is only one eligible member of the board. Under the New Process Steel decision, the NLRB must have its full quorum of three members in order to make decisions.

But the record of the current NLRB suggests that following law and upholding precedent are not things this Board does well. The NLRB spent most of 2012 overturning precedent. And former NLRB member John Raudabaugh has noted, many of these decisions could be overturned because of the improper appointments.

President Obama, after a successful reelection campaign, has union payback on his mind, and the current board has done everything it could to support organized labor.

Additionally, suspicion has clouded over nominee Griffin for his previous employment with the International Union of Operating Engineers (IUOE). He’s been accused of covering up embezzlement.

Nonetheless, President Obama has re-nominated Block and Griffin.The fact that both members are currently holding their seats in defiance of a federal appeals court shows their lack of respect for the rule of law.

In President Obama’s recently extended quest to duly reward organized labor for helping him take the White House, he took a serious risk. When he couldn’t deliver “card check” with EFCA, Obama opted to illegally appoint three new members to the National Labor Relations Board (NLRB). The risk that Obama took was not only that his picks would be thrown out, but that the President’s recess appointment power would be eviscerated.

The Noel Canning decision coming out of the D.C. Circuit Court of Appeals does exactly that, calling into question the scope of the recess appointment power granted to the President in Article II, Section 2 of the U.S. Constitution. The Constitution 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. [emphasis added]

In Noel Canning, the D.C. Circuit invalidated the appointments to the NLRB for two reasons. The first was on the grounds that “the Recess” is not like all other recesses of the Senate, but rather only the recess that occurs between sessions of Congress, known as the intersession recess. The Senate leaves for recess at other points in the year, often revolving around holidays and the summer. Each Congress usually meets for two sessions over the two-year term which — in the modern era — typically begin and end based on the calendar year.  In this case, however, the Senate was not in recess, deciding to instead conduct pro forma sessions that continued the first session of the 112th Congress until January 3, 2012. On that same day, it started the second session of that term. The appointments were not made until the next day, after the second session had commenced.

Second, the court continued its analysis into the language of Article 2 to determine what “happen” means. In the past, courts had interpreted “happen” to mean “exist” and therefore, it would allow a president to make an appointment to a vacant position that became open prior to the recess. But the DC Circuit ruled that “happen” is more accurately interpreted to mean “arise,” meaning that the vacancy must occur during the intersession recess. In this case, there was no intersession recess on January 3, only the beginning of the second session of the 112th Congress. Even if a recess in between the sessions occurred, the only valid appointee would be Sharon Block, as she replaced Craig Becker. Becker’s term expired at the end of the first session of the 112^th Congress, as he was a “recess” appointment in March 2010 (more on that in a moment). Richard Griffin and Terrence Flynn replaced members whose terms had ended in 2011.

The recess appointment power of the President, until Friday, had suffered few, if any, setbacks. But President Obama’s action was a unique one, due mostly to a strange new way of starting and ending sessions of Congress, which began in 2007, when Democrats controlled the Congress and George W. Bush was president. Senate Majority Leader Harry Reid (D-NV) ordered that the Senate never actually enter a recess by conducting pro forma sessions. Article I, Section 5, Clause 4 of the Constitution states:

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. [emphasis added]

Reid, known for his schemes, came up with a plan to block Bush from making recess appointments. By holding a session every three days, even if for mere seconds, Democrats would be able to block any of Bush’s recess appointments. The new Senate calendar would involve the end of the old session and the start of the new on the same day, with no recess in between. We’ll call this the “Reid Calendar.” The Reid Calendar was employed in 2007 and 2008 for that purpose; Bush respected the Constitution and made no appointments.

Flash forward to 2012, with a Republican-controlled House of Representatives that, under Article I, Section 5, must approve the Senate’s calendar. Not surprisingly, Republicans used the Reid calendar. But unlike Bush, Obama opted to ignore the pro forma sessions and make the appointments to the NLRB anyway. Therein lies the fatal flaw that has now put the entire recess appointment practice under scrutiny.

How far back will this decision extend? Right now, that’s hard to say. But at least consider Craig Becker’s appointment, which occurred on March 27, 2010. First, this was an intrasession recess of the second session of Congress. Under Noel Canning, this would be invalid, because it is just “a recess” and not “the Recess” that occurs between sessions. Second, Becker’s seat had been open since 2008, meaning that it did not “happen” in the recess.

There could be a saving grace for Becker, however. The “de facto officer doctrine,” established in the 1995 Supreme Court case Ryder v. United States “confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.” But there is also one exception, according to the Court: “We think that one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case is entitled to a decision on the merits of the question and whatever relief may be appropriate if a violation indeed occurred.”

All of this remains in the hypothetical realm until the Supreme Court takes on the case, which is very likely. Because other federal courts have ruled differently on the president’s recess appointment power, this creates a circuit split, meaning that there is different law in different parts of the country.

We knew that President Obama was willing to turn a blind eye to forced association for the sake of supporting labor on blocking right-to-work. But the NLRB appointments may prove to be his most extreme attempt at payback yet. Former Attorney General Ed Meese and Todd Gaziano of the Heritage Foundation deemed the appointments a ”constitutional abuse of high order.” The D.C. Circuit agreed. It may be only a matter of months before the Supreme Court agrees.

How much does President Obama think he owes organized labor? Enough to forever change the American presidency.

Professor John Logan is the director of Labor and Employment Studies at San Francisco State University, and a supposed “expert on the anti-union industry and anti-union legislation in the U.S.” Logan provides a perfect example of this defective memory with his op-ed in The Hill this week. Logan is responding to two articles by Trey Kovacs of the Competitive Enterprise Institute and Fred Wzsolek of the Workforce Fairness Institute, both of which questioned the process around the appointments to the National Labor Relations Board (NLRB).

Recall the purported “recess” appointments to the NLRB by President Obama one year ago. Rather than waiting until the Senate was actually in recess to invoke his Article II, Section 2 power, Obama appointed Richard Griffin, Sharon Block, and Terence Flynn to the NLRB during a pro forma session. This means that the Senate has not officially recessed.

And while people like Logan insist that Obama had to make appointments to the Board so that it would have a quorum, Democrats lacked that concern in 2008, when there were only two NLRB members in office. Prior to Reid’s pro forma revelation, almost all of Bush’s nominees had to be appointed in a (legal) recess. But after 2007, Democrats allowed the Board to dissipate so that it could no longer legally operate, as the Supreme Court ruled in 2010. This led to the invalidation of over 600 decisions.

One of President Obama’s contested recess appointees to the National Labor Relations Board (NLRB) is facing a lawsuit where he and several others have been accused of violating the law written to prosecute mobsters.

Although Richard Griffin became a member of the NLRB over a year ago, the President’s decision to appoint him without the constitutionally-required advice and consent of the Senate means that we may never be able to fully vet his record.

Lachlan Markay, writing for the Washington Free Beacon, reports that Griffin, the former general counsel to the International Union of Operating Engineers (IUOE), has been named in a civil lawsuit that invokes the Racketeer Influenced and Corrupt Organizations (RICO) Act and the Labor Management and Disclosure Act (LMRDA) to claim that union leadership helped perpetrate a cover up by threatening and firing union members who were investigating embezzlement in a union local.

The union member plaintiffs allege that another member of IUOE Local 501 in California was embezzling union funds by improperly spending the money on “expensive lunches with his mistress” and other unauthorized expenses. The business manager investigated, and after an independent audit, ordered that the accused repay $4,000. But the general president of the union, Vince Giblin, ordered the business manager to end the investigation. Giblin then threatened to put Local 501 under the control of the international union unless the business manager and his associates resigned.

The complaint alleges that Griffin, in his role as counsel to the international union, relayed this and other threats against the Local 501 investigators on behalf of Giblin.

This isn’t the first time that Griffin’s association with the IUOE has been in the headlines. A year ago, Griffin’s financial disclosures indicated that he would continue to receive pension payments from the IUOE while he serves as a member of the NLRB and decides cases that affect federal labor law.

Although Griffin hasn’t been found guilty of anything — he’s only been named as a defendant in a civil lawsuit — the dispute has been long-running and ongoing, even though the lawsuit was only served on Griffin in December. But since Griffin is a presidential appointee, shouldn’t we have heard about it sooner?

Information is trickling out, in fits and starts, because Griffin was a “recess” appointment to the NLRB who faced no scrutiny.

While Congress was still in session in early 2012, President Obama appointed Griffin, along with Sharon Block and Terence Flynn, to the NLRB. Unlike President Obama’s claims to the contrary, Senate Republicans had not “stalled” Griffin’s or Block’s appointments. The pair was only tapped as nominees to the NLRB on December 14, 2011. Obama “appointed” them on January 4, 2012. The process from nomination to appointment was so quick that the tech-savvy White House wasn’t even able to post their nominations on its website before they allegedly took office.

Legal scholars, including Former Attorney General Ed Meese, have criticized Obama’s appointments, and there are several pending cases challenging their validity. In the meantime, expect to hear no more than dribs and drabs about Griffin’s history and his fitness to serve as an NLRB member. Parties before the Board deserve better than that. President Obama refused to let the Senate look into Griffin’s record, and we are slowly finding out why. The President favored political expediency over the constitutional process, and this is the result.

While other folks might be wrapped up in discussing other constitutional matters today, union members and employers alike should still be concerned about President Obama’s “recess” appointments to the National Labor Relations Board.

In January, while the Senate was holding pro-forma sessions in order to keep the Congress out of recess, Obama appointed three new members to the NLRB without getting the consent of the Senate, as is required by the Constitution.

As legal experts have explained, including former Attorney General Ed Meese, there must be a formal resolution for the Senate to actually recess.

Attorney Andrew Grossman noted that even President Obama considered this to be an active session of Congress, because he signed the payroll tax cut extension into law—a bill approved while the pro forma session was in place.

Nontheless, Senate Majority Leader Harry Reid (D-NV) has threatened to allow more appointments to go through this same unconstitutional process.

But if you’ve grown weary of hearing legal jargon, there’s always just the plain old practical reasons why skipping the Senate confirmation process is a bad idea. As Fred Wszolek of the Workforce Fairness Institute (WFI) says in today’s Washington Examiner, the illegal appointees really should have been properly vetted.

One illegal appointee, Richard Griffin, was an attorney for the International Union of Operating Engineers—a union with dozens of members that have faced criminal charges that include labor racketeering, extortion and bodily harm.

As reported by the Heritage Foundation’s investigative reporter Lachlan Markay, Griffin will also continue to receive a pension from the IUOE while he sits on the NLRB, and may very well hear cases brought by his former employer.

More important than the individual members, however, is the harm that these appointments will inflict on workers and on the American economy. Wszolek writes:

The NLRB is supposed to be independent, but it has become anything but that under President Obama.  The White House has used the NLRB to reward its largest political contributor making little effort to disguise this as anything outside “payback” to Big Labor.

Though union leaders and politicians might not care, the illegal NLRB appointments have harmed the Constitution and are already negatively affecting our already-faltering economy.