Obama’s Overreach: What It Means for You

At the beginning of January President Obama announced recess appointments to two federal agencies – appointments traditionally made when the Senate, which is constitutionally charged with approving high-level administration appointments, is in recess.

The appointment that has attracted the most news coverage is that of Richard Cordray to head the new U.S. Consumer Financial Protection Bureau. But at the same time the President appointed three new members of the National Labor Relations Board: Democrats Sharon Block, an official with the Department of Labor official; and Richard Griffin, who has worked as an attorney for labor unions including the AFL-CIO and the International Union of Operating Engineers; and one Republican, Terence Flynn, a lawyer specializing in the National Labor Relations Act.

The NLRB appointments were needed if the board was to make any future decisions because the term of member Craig Becker (an earlier recess appointment) had ended and with it the board’s quorum. Several years ago the Supreme Court ruled that NLRB decisions were invalid unless they were decided by a quorum of the five-member board.

The most recent appointments to the NLRB created a furor among Republican members of the Senate, who assert they had not been in recess. The President’s use of his recess appointment power in this circumstance has created considerable controversy that is likely to be ultimately settled in the courts. What seems clear to even a non-expert observer is that President Obama overreached himself for political reasons in an election year by declaring that he, not Congress, would determine when they are in session.

The administration had been relying on the NLRB to issue a raft of pro-union decisions over the past year to placate its union supporters, who had been upset with the Democrats following the failure of card check legislation in a Democrat-controlled House and Senate earlier in the current administration. The board’s actions range from imposing “ambush” union election rules to requiring that all employers in the U.S. put up posters in their workplaces promoting union organizing -- the latter delayed by the NLRB to go into effect on April 30 for the board to better prepare for an inevitable court challenge.

Before he had to step down and the board lost its quorum, Becker and the other Democrat member of the board on Dec. 26 Craig approved new rule changes over the strong objections of the remaining Republican member that impose significant restraints on employers during union organizing drives.

There is no reason to expect that this recess appointment maneuver by President Obama will create much of a public furor for two reasons: It involves highly arcane constitutional issues, and the mainstream news media that maintained a steady flow of outrage supporting the objections of Democrats to President Bush’s recess appointments, is not merely supine but actively cheerleading the unprecedented Obama actions.

Do you think I am exaggerating? In January 2006 the New York Times published an editorial which called President Bush’s recess appointments “disturbing” and declared that they exhibited “a grandiose vision of executive power” and “a regal attitude.” On January 5 of this year an editorial in the same newspaper called President Obama’s actions “welcome” and literally cheered: “Hear. Hear.”

What is clear is that the Obama administration intends to let nothing get in its way to give whatever aid and comfort it can to its restive union allies who contributed tens of millions of dollars and man hours to the last presidential campaign. We can expect more of these extreme pro-union decisions from the new NLRB, even if they are eventually struck down in court.

What can you do? The answer is: Get involved and get educated. If you have not done so already, become active in the political process, getting to know your member of Congress and taking part in the government affairs activities of your industry association, both at the state and national levels.

IWLA members have become active in our government affairs activities in increasingly numbers. If you are part of the third-party logistics industry, you can get educated through IWLA webinars and other special educational opportunities offered throughout the year. One of these is a special educational session during IWLA’s Annual Convention that will be held March 18-20 in San Francisco.  At that workshop Kerryann Haase and Brian Paul, attorneys with the leading national labor law firm of Michael Best & Friedrich, will present a special two-hour NLRB workshop.

This workshop will give you practical and detailed advice on the steps employers should take to address the recent NLRB rule changes. This workshop is a must-attend event. It will provide an overview of the changing labor relations picture and what you can do to protect yourself and your company.

During the convention, Patrick O’Connor, who represents IWLA’s interests in Washington, and I also will present updates on the legislative and regulatory situation and IWLA’s ongoing efforts. To learn more about the convention and these issues, visit www.iwla.com.