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Obama Cynically Ups The Ante With Newest Nominations To His Illegitimate NLRB

Republicans should let SCOTUS decide on NLRB 'recess' appointments

Earlier this week, Barack Obama made three nominations to his beleaguered and arguably-unconstitutional National Labor Relations Board. Through this week’s action, Obama is once again demonstrating that he is more interested in setting up a political war-of-words than solving the problem he created.

NLRB Failed Inspection

Throughout his first term, Obama stacked the agency with mostly union attorneys with radical union agendas. However, the union-biased NLRB hit a brick wall with the January 25th ruling that Obama’s 2012 unilateral declaration that the Senate was in recess and his subsequent ‘recess’ appointments were, in fact, unconstitutional.

Almost immediately, instead of staying on message that the appointments were constitutional, Obama undermined his own argument by renominating two of the constitutionally-questionable appointments. After all, if the ‘recess’ appointments were, in fact, constitutional and the Obama Administration was comfortable with its legal argument, why the need to immediately renominate them?

This is particularly revealing since, if the appointments were indeed legitimate, there really was no need for the renominations as “the terms of the two Democratic 2012 recess appointees, Sharon Block and Richard Griffin, will not expire until Congress adjourns at the end of its 2013 session.”

Now, with the legal standing of the NLRB to be decided by the U.S. Supreme Court and the House of Representatives voting this week to curtail the NLRB’s ability to issue decisions until the Supreme Court issues a decision (which may not come until next year), the President has chosen to nominate two Republicans to the Board. In addition to Harry I. Johnson and Philip A. Miscimarra, Obama also re-nominated union attorney and current NLRB chairman Mark Pearce.

Although both Johnson and Miscimarra both represent management in labor matters (Johnson told the Washington Examiner that he is a believer in the free market), if they are confirmed–along with Pearce–and the Supreme Court rules Block and Griffin’s appointments were valid, the two Republicans do nothing to change the nature of the union-biased agency. All of the rule-making and decisions that the NLRB has made since January 2012 will be validated.

If, on the other hand, Block and Griffin’s ‘recess’ appointments are struck down, the NLRB’s endeavors to rewrite the law through rule-making and its decisions since January 2012 (and perhaps as far back as 2010) will likely become nullified.

What makes Obama’s nominations this week an even bigger gamble for the President is that it is possible the Senate confirms the two Republicans (as well as Pearce) and the Supreme Court knocks down the Block and Griffin recess appointments.

If this happens, Obama (and his union boss allies) could be stuck with a NLRB that consists of one Democrat and two Republicans. Chairman Mark Pearce would be outvoted in many of the cases and the efforts to rewrite the law by regulatory fiat would come to a screeching halt.

While the above scenario is entirely possible, it is also unlikely. Given that today’s union bosses are almost wholly dependent on government to be their benefactors, it would be too big a chance for Obama and his union boss allies to take without having something up their collectivist sleeves.

Rather, what is likely going on is that there is some deal being cut within the bowels of the Senate…One of those you-give-us-ours-if-we-give-you-yours package-deal types of discussions.

Union bosses know their only shot at saving themselves at this point is through the NLRB, which is why Obama offered a sharpened olive branch this week. This is also why union bosses are now issuing press releases “urging” the Senate to confirm all of the nominations.

From the Teamsters’ Hoffa:

“These bipartisan nominees clearly indicate President Obama wants to rise above petty political games,” Hoffa said. “I call on the Senate to confirm these nominees quickly so the NLRB can concentrate on the important task of making sure workplaces are productive, fair and safe and workers’ rights to organize and bargain collectively are safeguarded.”

From the UFCW’s Hansen:

….The Senate now has before it a full package of nominees to the NLRB. It is time for Republicans to put ideology aside, do their job, and allow for prompt consideration. America’s workers deserve nothing less.

From the red shirts at the CWA*:

“It’s important that the Senate moves quickly, to counter a cynical move by House Republicans to stop the NLRB from making any decisions without a quorum of three, despite the fact that Senate Republicans have blocked all nominations to the Board. The ridiculously named ‘Preventing Greater Uncertainty in Labor-Management Relations Act’ will come up for a House vote later this week,” said CWA President Larry Cohen.

[snip]

Now it’s up to Senate Majority Leader Harry Reid and Senate leaders to move the President’s nominations to the Senate floor and work to have them confirmed.

    * Note: Over the past few years, the CWA has spent more than $300,000 of its members’ money (aka ‘union dues’) to “reform” the Senate rules on filibusters.

Obama’s NLRB nominations this week are nothing more than a political ploy–aimed at setting up Senate Republicans. As a result, it would be foolish for Republicans to jump on some backroom, deal-making bandwagon.

Obama’s ‘recess’ appointments were found to be unconstitutional by the U.S. Court of Appeals for the DC Circuit. He then undermined his own claim that they were constitutional by immediately re-nominating them. Therefore, Republicans should let the Supreme Court decide on the Block and Griffin appointments, since a three-to-two union majority does nothing at all to change the radical nature of the NLRB.

If Obama were really serious about solving the problem he created, he would pull the Block and Griffin nominations and let the Senate confirm the newest nominees.

  • Related: Union Bosses Should Imagine A World Without Obama’s NLRB
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    “Truth isn’t mean. It’s truth.”
    Andrew Breitbart (1969-2012)

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