Obama's Labor Board Suffers a Defining Week

This past week was another damaging one for President Obama’s National Labor Relations Board (NLRB). On the day the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP) conducted a hearing to consider the nominations of all five Board members, the U.S. Court of Appeals for the Third Circuit found the president’s so-called recess appointments to that same federal agency to be unconstitutional.

The decision comes on the heels of the U.S. Court of Appeals for the D.C. Circuit also finding the president’s recess appointments were inconsistent with the Constitution. When the D.C. Circuit first ruled earlier this year, the Obama Administration was quick to discount it saying the decision only applied to Noel Canning v. NLRB, and not any other case.

In fact, Board Chairman Mark Pearce wrote the NLRB “will continue to perform our statutory duties and issue decisions.” The White House has been much slower to dismiss the Third Circuit’s decision which largely repeats the D.C. Circuit ruling. With the Obama Justice Department seeking to overturn the D.C. Circuit ruling, it seems the president’s lawyers are much less confident in their arguments than they were just a week ago now that a second court has ruled.

All of this takes place as the president’s nominees are coming under increased scrutiny for decisions they have reached and their questionable backgrounds. During the HELP hearing, U.S senators had questions about a host of issues, including the formation of micro-unions and access to employee contact information, among others.

Regarding micro-unions or the Specialty Healthcare case, the Board undid decades of precedent in allowing mini or small collective bargaining units to be formed. These micro-unions would be made up of as few as two or three employees and produce acrimony among employees as well as cause employer costs to skyrocket.

Next, the Senate committee questioned Pearce on why he would be open to providing union organizers with private employee contact information, including cell phone numbers and email addresses. Needless to say, Pearce’s justification for exposing workers to harassment and intimidation at the hands of labor organizers was met with a lot of skepticism.

And that takes us to a Board member who has been in the news as of late, Richard Griffin. Griffin represents everything that’s wrong with the Obama NLRB. Griffin has the distinction of being the former general counsel of the International Union of Operating Engineers (IUOE). As such, he oversaw a union that, according to Fox News has a “rap sheet for members…[that] reads like something out of ‘Goodfellas.’ Embezzlement. Wire fraud. Bribery. That’s just scratching the surface of crimes committed by the IUOE ranks.”

The news report goes on to state, “Public documents…show that more than 60 IUOE members have been arrested, indicted or jailed in the last decade on charges that include labor racketeering, extortion, criminal enterprise, bodily harm and workplace sabotage.”

And if that wasn’t enough, Griffin is a defendant in an embezzlement and racketeering suit. He is named in the portion of the matter that directly addresses a cover up. According to The Wall Street Journal, “Mr. Griffin is named in a federal complaint filed in October by 10 members of IUOE Local 501, out of Los Angeles, which describes a ‘scheme to defraud [the local] out of revenue, cost savings and membership,’ by means of kickbacks, bribery, violent threats and extortion. The suit names dozens of IUOE officials as defendants, and Mr. Griffin is highlighted in a section describing an embezzlement and its subsequent hush-up.”

This leaves the National Labor Relations Board and most unfortunately the workers and businesses reliant upon it in a great state of uncertainty. Employers are litigating cases before a Board that is illegitimate as it does not have a legal quorum knowing they will likely need to pay to address the matters again when the federal agency is legally reassembled.

All of this is the byproduct of President Obama’s reckless disregard for the U.S. Constitution and Senate’s role in advising and consenting on federal nominations. Had the president abided by tradition and the law, the current mess surrounding the NLRB would have been completely preventable.

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