recess appointments Archives - Shopfloor

NLRB in Damage Control Mode

By | General | No Comments

This afternoon, National Labor Relations Board Chairman, Mark Pearce, issued a press statement in response to three of his Board Members’ appointments being invalidated by the Appeals Court. In his statement, Chairman Pearce tries to make the assertion that all is well with the Board and they will continue to go about their business, because the Court is wrong and even if they’re right it only applies to one case. Nothing could be farther from the truth and he ought to know that.

The U.S. Court of Appeals for the DC Circuit ruled today that President Obama’s recess appointments of Sharon Block, Richard Griffin and Terry Flynn were invalid at their inception – as far as court opinions go that’s pretty clear and unambiguous language. If the appointments were never valid then the Board has been operating without a quorum, which would be in violation of Supreme Court decisions requiring at least three Board members in order to issue regulations or case decisions.

If the Board is then violating the precedent set by the Supreme Court, how is it that today’s ruling would only apply to the case in which the ruling was made?

The facts suggest Chairman Pearce may be keeping his eye on whatever prize it is he’s been keeping an eye on, but the Courts showed they are keeping an eye on whether the Board is acting within its power and authority. Soon, the DC Circuit will issue a ruling on a case the NAM filed against the NLRB on a regulation that was clearly asserting more authority than the Board was intended to have.

The last year of actions by the Board has just been thrown into limbo. It will be up to the Supreme Court to decide if the Appeals Court was right, but to suggest it only applies to one case is misleading at best. Acting as if the ruling changes nothing is, well, you know.

NLRB Composition Ruled Unconstitutional

By | Labor Unions | No Comments

The NLRB’s activist and aggressive actions in recent years have raised significant concerns, including challenges to the constitutionality of the Board’s composition. Today’s ruling gives strong confirmation to those concerns and is a significant rebuke of what has become an increasingly overreaching NLRB with an intent to ignore its statutory authority.

The NLRB, currently made up of only three members without a dissenting voice, has had two of those member’s appointments invalidated by the U.S. Court of Appeals for the D.C. Circuit. If this ruling stands, Chairman Mark Pearce will be the only properly seated member of the NLRB until August when his term expires. This ruling speaks volumes about the way the Board has been constituted and throws a significant roadblock in its rulemaking ability.

For manufacturers that have been forced to deal with increased burdensome regulations, this is an important moment—perhaps a sign that we may see an NLRB in the future that will exist to improve employer–employee relations in this country rather than tear them down.

The NAM will be reviewing the opinion thoroughly to determine what impact this significant development will have on any and all decisions made by the Board over the past year.

Recess Appointments Signal Administration Approval of Activist NLRB

By | Labor Unions | No Comments

Over the last year the NLRB has exhibited an astonishing overreach of their authority, ignored Congressional intent, and created potentially hostile work environments where none existed. The ambush elections rule, the decision in the Specialty Healthcare case, and the now-resolved complaint against the Boeing Company each had chilling effects across the manufacturing sector and overall economic growth. The NAM sued the NLRB to prevent the implementation of the “poster rule,” yet another example of a Board that has taken on an improper activist role.

Unfortunately, it looks like the President has given a green light to the NLRB to continue its activist agenda.  Yesterday President Obama announced that he will recess-appoint Sharon Block, Terence Flynn and Richard Griffin to the Board.

Perhaps Sharon Block and Richard Griffin will prove themselves to be fair arbiters of labor policy though, given their history of working for labor unions, it would seem they will bring a similar bias to the job.  The Administration has short-circuited the process, however, and they will assume their posts without the necessary scrutiny to ensure that there are no conflicts of interest – financial or otherwise. Given the impact of the Board’s decisions on jobs and our economy, these appointments warrant a thorough examination in order to avoid increasing the Board’s bias against employers and creating even greater overregulation.

The NAM will actively consider all options available to ensure that these nominations receive the deliberation and scrutiny that they deserve.

Boeing Complaint: Hatch Challenges Appointment, Authority of NLRB’s General Counsel

By | Briefly Legal, Labor Unions | 4 Comments

President Obama skirted federal law and established procedures to appoint Lafe Solomon to serve as Acting General Counsel of the National Labor Relations Board, Sen. Orrin Hatch (R-UT) charged this week, calling on the President to withdraw Solomon’s appointment in the wake of the NLRB’s unjustified and economically disastrous complaint against The Boeing Company.

Hatch took to the Senate floor Thursday to dissect and denounce the NLRB’s complaint against Boeing for locating new assembly facilities in South Carolina instead of Washington State.  In a lengthy statement (available here), the Utah Republican analyzed the NLRB’s contravention of federal law labor, warned of the competitive consequences of bureaucrats making facility-siting decisions, and criticized the Obama Administration for putting the interests of organized labor before the nation’s.

NLRB's Lafe Solomon

Hatch also challenged the validity of President Obama’s June 21, 2010, appointment of Solomon to serve as Acting General Counsel, arguing that the President ignored the established procedures for such appointments under the National Labor Relations Act (NLRA). Instead, Hatch said, the President made Solomon his personal acting general counsel under “the more generous terms” of the Federal Vacancies Act, which is intended to apply to government vacancies in general.

Why did the President take this unusual step? Hatch:

Under the Vacancies Act, Mr. Solomon is allowed to stay in the job in an acting capacity, without Senate approval, for an initial 210 days—rather than the 40 days provided under the National Labor Relations Act—and then be reappointed again for another 210 days, and a third time for yet another 210 days, until the end of President Obama’s term.

This is yet another example of the President end running the law in order to ensconce in office individuals who would have a difficult time surviving the constitutionally required confirmation process—a process that ensures the people and their representatives have some meaningful oversight of the appointee.

Solomon filed the NLRB complaint against Boeing on April 20, acting in support of the International Association of Machinists and Aerospace Workers, which represents workers at Boeing’s Washington facilities. Given the timing cited by Sen. Hatch above, Solomon’s appointment as Acting General Counsel should have expired on July 31, 2010, depriving Solomon of the authority to take the later action against the airplane manufacturer.

Hatch’s analysis carries extra weight because of the Senator’s status as a senior member on both the Senate Health, Education, Labor, and Pensions Committee — which oversees the National Labor Relations Act — and the Senate Judiciary Committee. In challenging Solomon’s authority, the Senator also reinforces an argument made by Boeing in its defense.

Boeing’s formal response to the NLRB filed on May 4 challenges Solomon’s status, the 14th and final item in the list of the company’s defenses: “The Complaint is ultra vires because the Acting General Counsel of the NLRBdid not lawfully hold the office of Acting General Counsel at the time he directed that the Complaint be filed.” Ultra vires means outside of one’s authority. Read More

Sens. Enzi, Hatch Were Right About Craig Becker, Radicalized NLRB

By | Economy, General, Labor Unions | 5 Comments

Sens. Mike Enzi (R-WY) and Orrin Hatch (R-UT) have led the opposition in the Senate to the President Obama’s nomination and subsequent recess appointment of the former SEIU and AFL-CIO counsel Craig Becker to the National Labor Relations Board. The NLRB’s outrageous complaint against The Boeing Company this week for expanding operations in South Carolina proves their point: Becker’s appointment has contributed to a radicalized NLRB that has abandoned its quasi-judicial role for pro-labor activism.

The Senators issued a news release in February as members of Senate Health, Education, Labor, and Pensions Committee urging President Obama to withdraw his latest nomination of Becker made in January.

“I oppose the nomination of Craig Becker absolutely. Over the past ten months, Mr. Becker has made his intention and bias clear. The NLRB is meant to be an impartial authority ensuring organizing freedom in the workplace, not a politicized institution bent on increasing unionization rates at the cost of American jobs. Last year, Mr. Becker was appointed against the will of the Senate. This year, I urge President Obama to work with Senators to identify a replacement nominee,” Senator Enzi said.

“Last year, the Senate rejected Mr. Becker’s nomination because there were serious questions as to whether he could remain impartial while serving on the NLRB. These questions have not been resolved and, if anything, it is more clear now that Mr. Becker is more interested in furthering a pro-union political agenda than in upholding our nation’s labor laws. If the President, as he stated in the State of the Union, is serious about relieving pressure on the business community and ushering in a new era of bipartisanship, he should withdraw the Becker nomination and work with us to find someone that both parties can support,” Senator Hatch said.

Our emphasis. They called it, didn’t they?

As a recess appointee, Becker can continue to serve without Senate confirmation through the end of 2012. Meanwhile, NLRB Chairman Wilma Liebman’s term expires Aug. 27, 2011.

Rumors are circulating of President Obama nominating Becker to Liebman’s five-year term. if Senate Republicans continued to block Becker’s nomination (a safe bet), the President might then recess appoint him to the vacancy. That maneuver would give Becker a position on the NLRB through the end of the 113th Congress, or December 2014.

(UPDATE, Clarification, 9:55 p.m.: Re-reading this Congressional Research Service publication on recess appointments, it appears a recess appointment could not last through 2014. Recess appointments are valid through the next session of the Senate. Thus, a recess appointment made in 2011 or between the two sessions of the 111th Congress would extend through 2012. One made in 2012 — during a spring recess, for example — would extend through the end of the next session, i.e., the first session of the 113th Congress, or through 2013.)

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Dispatch from the Front: The Week of November 22

By | Dispatch from the Front, General, Taxation | No Comments

Congress is again away, only to return lame-duckedly next Monday, Nov. 29.

President Obama and Vice President Biden travel to Kokomo, Ind., on Tuesday for a White House to Main Street event, because “with the help of the Recovery Act and the Administration’s auto restructuring plan, Kokomo is on the rebound today and unemployment has dropped by nearly 8 percentage points since mid-2009.” On Wednesday, the President pardons a turkey.

Thursday is Thanksgiving, and the National Association of Manufacturers will be closed Thursday and Friday.

The Senate reconvenes on Monday,  Nov. 29, at 2 p.m. and will return to the debate on S. 510, the Food Safety Modernization Act. (No pro forma sessions are scheduled this week. The Senate’s consecutive three-days absence means the President could make recess appointments.)  The House reconvenes at 2 p.m. Monday.

Executive Branch: Interior Secretary Ken Salazar travels to Louisiana today to meet with people whose livelihoods have been harmed by the capricious Gulf of Mexico drilling moratorium and continued permit delays. The meeting with the Shallow Water Energy Security Coalition takes place in Houma, La., at Gulf Island Fabrication, a manufacturer.  The Consumer Product Safety Commission meets Wednesday to vote on the final rule for a public safety complaint database.

Economic Reports: The big news of the week comes Tuesday, when the Federal Reserve will release the minutes of the Federal Open Market Committee’s Nov. 2-3 meeting where the decision was made to engage in further quantitative easing. The Fed’s report will also contain updated economic forecasts. Also Tuesday, the Commerce Department releases the revised third quarter GDP figures, and the Realtors announce October existing home sales.  On Wednesday, Commerce releases durable goods for October, as well as reports on personal income, spending and new home sales for last month. AP’s week ahead. See also Washington Post’s Neil Irwin.

For all the attention paid to this year’s post-Thanksgiving retail sales, this year the real Black Friday — in the traditional doom-laden sense — is Dec. 31, the day before the return of the death tax and higher income tax rates unless Congress acts to extends the 2001 and 2003 levels.

China, India, Brazil, Exports, Compliance

By | General, Trade | No Comments

The Commerce Department’s top trade official, Francisco Sanchez, got right down to work after receiving a recess appointment by President Obama. From Reuters, “U.S. sees China, India, Brazil key to export growth“:

WASHINGTON (Reuters) – The U.S. government will encourage China, India, Brazil and other fast-growing markets to buy more American goods as part of its bid to double exports in five years, a top trade official said on Wednesday.

“That’s where the money is and that’s where we need to focus,” Commerce Under Secretary for International Trade Francisco Sanchez told reporters, noting that 95 percent of the world’s consumers live outside the United States.

Also Reuters, “US eyes options in ‘zeroing’ spat with EU, others“:

WASHINGTON, April 7 (Reuters) – The United States is trying to find a way to comply with a World Trade Organization ruling against its anti-dumping procedures without damaging its ability to curb unfairly traded imports, a top U.S. trade official said on Wednesday.

“We’re trying to strike the right balance between being WTO compliant, but still making sure our trade law remedies are not damaged in the process. That’s not an easy path to maneuver,” Commerce Under Secretary for International Trade Francisco Sanchez told reporters.

Unprecedented Usage

By | Communications, Labor Unions | No Comments

The White House backed up the announcement of President Obama’s intention to make recess appointments of 15 nominees with a blog post by Jen Psaki, the White House’s Deputy Communications Director, “An Unprecedented Level of Obstruction.”

An Unprecedented Level of Obstruction.” The Administration makes frequent use of that term, “unprecedented.” How frequent?

Well, if you search for the term “unprecedented” at www.WhiteHouse.gov, you get 353 hits. As of 6 p.m. today.

But only four times in headlines.

This is not a shot, by the way. Every Administration has its rhetorical quirks.

Well, If It’s Just for the NLRB Guys

By | Labor Unions | No Comments

Now that the President has announced his intention to make 15 recess appointments, Politico’s story on Senate Majority Leader Harry Reid’s views on recess appointments takes on an interesting, new light.

Reid had told White House officials he’s willing to accept the appointment of union-friendly lawyers Craig Becker and Mark Pearce to fill two longstanding vacancies on the five-member board, according to Democrats familiar with the situation.

But he had also made it clear that making recess appointments of dozens of other nominees stalled by Republicans would violate “senatorial prerogatives” — and over-using the side-door process could open up Democrats to election year attacks, according to a senior Democrat on condition of anonymity.

“Harry doesn’t like it, but he’ll tolerate it for the NLRB guys,” the senior Democrat said of recess appointments.

And how about the 13 others?

Should we anticipate a return to the sub-minute pro forma sessions that the Majority Leader used to interrupt Congressional recesses during the Bush Administration? You remember, don’t you?

Associated Press, May 24, 2008, “Pro forma sessions block Bush“:

The Senate is famed for its long-winded debates, but on Friday it took Democratic Sen. Sherrod Brown just seconds to stop Republicans in their tracks.

With the Senate entering the first day of its Memorial Day recess, the Ohio senator was briefly in the chair, before a near-empty chamber, to gavel in and gavel out what is called a pro forma session. Without that procedural move, the Senate would technically be adjourned and President Bush could install administration officials or judges as “recess appointments” — without Senate confirmation.

“That’s the fastest I’ve ever done it,” said Brown, who like other freshmen does duty as presiding officer when the Senate is in regular session. He said he didn’t realize until he got there that the prayer and Pledge of Allegiance, which usually open a session, were dispensed with for pro forma meetings. 

“I’m willing to do it,” Brown said of showing up when nearly every senator has already left town. “We’re not going to let them get away with that kind of abuse of power.”

Resisting Becker Because of the Substance of His Views

By | Labor Unions | No Comments

The Senate has departed Washington with no pro forma sessions scheduled for two weeks, enabling President Obama to make recess appointments. Speculation circles around the appointment of SEIU counsel and radical labor theorist Craig Becker to the National Labor Relations Board.

Investor’s Business Daily editorializes, “Card Check by Fiat?,” expressing views that align with many of those in the business community. Appointing someone from the labor side to the NLRB is understandable, even if Becker would be the first appointee to come directly from a union’s staff. Recess appointments fall under the normal course of operations (even if Becker actually had a vote by the full Senate, the failure to invoke cloture on his nomination). The problem is Becker’s views and the possibility of his pushing through anti-democratic measures on the NLRB. IBD:

Becker for years has been making the argument that labor rules favoring unions that can’t gain congressional approval can nonetheless “be achieved with almost no alteration of the statutory framework.” His desire to usurp Congress’ authority to make law hasn’t gone unnoticed by Sen. Ben Nelson. The Nebraska Democrat thinks Becker’s record strongly indicates that he would “pursue a personal agenda” at the board “rather than that of the administration.”

The unions don’t even make a secret of their plans to bypass the legislative process if they can’t get what they want from Congress. As Stewart Acuff, chief of staff and assistant to the president of the Utility Workers Union of America, wrote last month in the Huffington Post:

“If we aren’t able to pass the Employee Free Choice Act, we will work with President Obama and Vice President Biden and their appointees to the National Labor Relations Board to change the rules governing forming a union through administrative action.”

Senate Majority Leader Harry Reid’s once adamant opposition to recess appointments has softened, at least when it comes to the National Labor Relations Board, Politico reports:

“He has decided that enough is enough and would support such a move,” spokesman Jim Manley said late Friday.

Reid had told White House officials he’s willing to accept the appointment of union-friendly lawyers Craig Becker and Mark Pearce to fill two longstanding vacancies on the five-member board, according to Democrats familiar with the situation.

More …

And here’s a release, interesting mostly in terms of its source, Rep. Chaka Fattah (D-PA), a House member whose committee assignments have no jurisdiction over labor issues, “Congressman Fattah Urges Recess Appointment to NLRB“:

The work of the NLRB is too important to fall victim to silly Senate politics. I call on the President to do the right thing, right now. Use your recess appointing power and seat Craig Becker immediately.

Senators will love that, a House member lecturing them on politics and prerogatives. For the record, Senate opposition to Becker’s confirmation was bipartisan, and employers’ objections to his appointment to the NLRB are serious, not silly.

Earlier posts on Becker and the NLRB.