Unions, business groups on watch for recess appointments to labor board

Unions are watching the White House this holiday season in hopes that President Obama will risk a political backlash to prevent a shutdown of the National Labor Relations Board (NLRB).

The NLRB will be left with two board members when the recess appointment of Craig Becker expires at the end of the congressional session. The Supreme Court has ruled that the NLRB needs at least three members to issue rulings and regulations. 

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With Senate Republicans unlikely to confirm new NLRB nominees, it appears that Obama will have to make recess appointments to keep the labor board up and running.

But bypassing Congress could carry a political cost for the president. Republicans argue the NLRB has become a proxy for the labor movement and could point to the recess appointments as evidence that Obama is taking cues from his union allies as he runs for reelection. 

All 47 Republican senators sent Obama a letter on Monday asking that he not make recess appointments to the NLRB.

Recess appointments could also anger the business community, which is battling the NRLB over a new rule that they say allows organizers to “ambush” employers with union votes. The rule cuts down on the litigation permitted on union elections.

Obama could also pay a price for not acting. Unions consider the NLRB a huge priority, and a shutdown of the agency could disappoint labor leaders who will be key to getting out the Democratic vote in 2012. 

Despite the firestorm recess appointments would generate, one union official said it’s something Obama should seriously consider.

“I think if he has any opportunity to avoid Congress, he should do it, especially considering this latest stunt,” said the union official, referring to the battle over the payroll tax cut.

In a memo sent to reporters Tuesday, American Rights at Work, a workers' rights advocacy group, said a powerless NLRB would leave employers and workers “stuck in legal limbo.” The memo said pending complaints and cases involving social media, collective bargaining rights and mandatory arbitration agreements would be left unresolved.

“It is critically important for employees to have a better understanding of their rights and for employers not to be left in legal limbo as to whether or not their workplace policies are legally sound,” said Erin Johansson, ARAW’s research director.

“You don’t have enforcement of the law ultimately when you don’t have the board,” Johansson said. “There would be no cops out on the street.”

Also, portions of the contentious union election rule still under consideration by the NLRB — such as sharing with union organizers workers’ email addresses and personal phone numbers — could not move forward under a two-member board.

The Obama administration has already picked the members it would like to see join the labor board once Becker departs.

Last week, Obama nominated Sharon Block and Richard Griffin as new Democratic members to the board. Further, the president nominated Terence Flynn in January 2011 to be a Republican member of the NLRB.

If all three nominees were confirmed by the Senate or recess-appointed by the president, that would bring the labor board up to its full roster of five members, though only three are need to form a quorum.

“Regardless of the politics or the process, we need a functioning government and we need functioning government agencies,” the union official said. “This board will be shut down unless appointments are made.”

The administration is keeping its cards close to the vest. A White House spokesman declined to comment when asked about potential recess appointments at the NLRB.

On Wednesday, White House press secretary Jay Carney emphasized that the administration is not relinquishing its rights to make such appointments.

“Well, I don’t have any announcements to make or speculation to engage in on that front. I mean, we’re not relinquishing any rights here. That’s certainly the case,” Carney said in response to a reporter’s question.

Republicans have sought to block the president from making recess appointments by keeping the House and the Senate in pro forma session during congressional recesses, and by not having the House consent to adjournment.

The pro forma sessions result in recesses of three days or less on Capitol Hill. A 1993 Justice Department brief suggested the president can make a recess appointment during a break of more than three days, according to a December 2011 report by the Congressional Research Service (CRS).

The CRS report also noted that Presidents Harry Truman and Theodore Roosevelt made recess appointments during congressional breaks of three days or less — Roosevelt once making more than 160 recess appointments in a half-day — but drew no conclusions about whether a modern-day president could do the same.

“The instances cited here each have unique characteristics, and their potential applicability under current practices and conditions remains open to question,” the report states.

Critics of the NLRB worry Obama might mimic Roosevelt and make recess appointments after Congress adjourns to start its next session.

“Of course I'm worried about it, but I doubt the president would go forward because it would poison the well in the Senate,” said Randy Johnson, the U.S. Chamber of Commerce’s senior vice president of labor, immigration and employee benefits.

“It would be comparable to [former Senate Majority Leader] Bill Frist [R-Tenn.] considering re-jiggering the Senate rules to get rid of the filibuster, the so-called nuclear option. ... This would be the nuclear option for appointments.”

The Chamber is one of many business groups that have lobbied heavily against the NLRB’s actions this year, whether it was its complaint against Boeing for allegedly retaliating against union workers or its proposal to speed up union elections.

Like Johnson, Republican senators are also concerned about Obama making recess appointments during Congress’s mandatory adjournment between sessions. In the GOP senators’ letter to the president, they said it would “provoke a constitutional conflict.”

Both labor and business are examining the legal channels available to the president when it comes to recess appointments, which Johnson calls “a murky area.”

“We're looking at every option and this is a very high priority for us," said another union official.

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