The recess appointments of the NLRB members and Richard Cordray may be done but that doesn’t mean the controversy has died down. Since the appointments, many of my contacts have expressed their frustration over the Obama Administration’s actions.
Did the President flush the Constitution down the toilet with his nominations? That’s what some of my CEO friends are saying. Former National Labor Relations Board Chairman Peter Schaumber offered his insight into the controversy in an email exchange. Schaumber served for nearly eight years on the NLRB and is currently a labor consultant in DC. Before his appointment to the board Schaumber practiced as a labor arbitrator.
LL: The President made the announcement on Wednesday the recess appointment of NLRB. This move sidestepped the Senate approvals but there are legal authorities saying the GOP in the Senate used Pro Form sessions (a brief meeting on the floor of the Senate) to avoid recess.
What do you think of the appointment?
PS: The Republicans are doing what the Democrats did during the last year of the Bush administration, an invention of Senator Harry Reid, not recessing to prevent the president from circumventing the confirmation process by naming recess appointments.
In the case of the Bush’s nominations to the NLRB, unlike President Obama’s nominations to the NLRB, they were being denied an up or down vote. However, President Bush honored the legal interpretation given the Recess Clause by the Department of Justice, that a recess must be for longer than 3 days before a president can name a recess appointee.
President Obama has not.
As I understand it, the Senate is in pro forma session but to remain in session it must gavel in and gavel out ever 4th day. That is what the Democrat’s did, a Virginia or Maryland senator was used for that purpose. The Republicans were in the process of doing the same thing but President Obama broke with DOJ’s interpretation of the Recess Clause and the custom and practice of the Senate to made these unprecedented recess appointments.
The circumstances under which these recesses were made make them, in my view, a real abuse of executive power. The two Democrat nominations were made by the President on December 16, the Senate adjourned for Christmas the next day, December 17. The Senate had no time whatsoever to consider the nominee’s, the nominees had not completed or even submitted the Senate committee’s paperwork used to vet nominees which inquiries into such things as conflicts of interest. In sum, these were not stalled nominations as were the NLRB nominations in January and February of 2007 referred to above.
LL: Did the President avoid the Constitutionally mandated Senate Confirmation process? Did he circumvent the American People?
PS: Yes, but while the advice and consent of the Senate is constitutionally mandated it can be avoided through recess appointment that properly invokes the Recess Clause. A recess until yesterday, however, to be a recess had to be for not less than 3 days and the nominee’s nomination was generally pending for some time. While I am not certain about this, I suspect the reason for this interpretation is the recognition that the underlying reason for the Recess Clause was to keep the government operating during periods of time when the Congress was not in session. Prior to the Civil War, the Congress was session only part-time.
LL: If legally challenged and the ruling in the President's favor, does this set a precedent on the constitutional duty the Congress has to examine and check on executive power? Could any future President complete cut the Senate out of the confirmation process?
PS: It appears so, a future president could ignore the Constitution’s requirement that presidential appointees be confirmed by the Senate.
LL: Did the President do this because he knew none of his appointees would have been confirmed?
PS: No. While I don’t know what was in the President’s mind, I suspect he knew Terry Flynn would be confirmed and perhaps Sharon Block depending on how she answered the Senate’s questions. The real issue would have been Griffin who comes directly from organized labor and even if he theoretically could be neutral, the appearance makes him unsuitable. George Meany, the President of the AFL-CIO for many years, to his credit was opposed to the appointment of management –side and union-side labor lawyers arguing they could not be objective.
I believe the President was willing to abandon DOJ’s interpretation of the Recess Clause and traditions and practice of the Senate to do a favor for Big Labor. Big Labor wants to see as many changes as possible made to Board law to augment its power and stem the decline of unionization in the private sector. It may have a limited time to do that.
For sure the President’s nominees were going to be closely scrutinized. His past appointments have polarized labor relations in the US: Boeing, the rule requiring the posting by nearly all employers of a partisan notice, a quickie election rule on a 2 member vote of the NLRB (itself a break from the decades old tradition and practice of the Board requiring 3 affirmative votes for any Board action), micro-units, etc.
And nominations to the Board should be closely scrutinized.
Griffin is the second person to be nominated for a full board term to come from organized labor. Craig Becker, who was recessed after he was filibustered (I believe the vote was something like a 53 to 32 vote), was the first. One can reasonably question whether a person coming directly from organized labor can be neutral on the question of unionization. The Supreme Court has said the Act must be interpreted in that manner.
Sharon Block has the reputation for being a union advocate. The Senate would want to know: Is she able to be neutral on the question of unionization? Who did she interview while on Senator Kennedy’s staff for a Democrat slot on the NLRB? What did she ask them? What was she looking for in a board member? Also, she was a senior NLRB staff attorney for many years and played in intimate role in some major Board decisions. What were they? Was her advice to the board, which would have been in a bench memo, an objective statement of the facts and the law or was it slanted toward a particular result?
LL: The appointments for the NLRB are all pro labor: Democratic union lawyer Richard Griffin, Democratic Labor Department official Sharon Block and Republican NLRB lawyer Terence Flynn. Do you think this board is balanced and will be objective enough to referee cases between the private-sector employers and employees?
PF: No, Terry Flynn was my chief counsel for nearly 7 years. He was a former management attorney and we saw eye to eye on most issues.
While a former management attorney he is balanced. He understands the legitimate needs of unions and employers. Management attorneys on the board do not have the pressures on them that union labor lawyers do. While each may be going back to practice, there are relatively few unions (many thousands of employers), organized labor demands complete loyalty and makes it known publically that Democrat members on the Board are there to serve the interests of organized labor.
I don’t not believe this board will be balanced, but will likely be a replay of the past Obama Board. The Democrat members, which includes the current chairman Mark Pearce, will not be neutral on the question of unionization; unfortunately they will be union partisans. I view Griffin as the replacement for Craig Becker, Block for Wilma Liebman.
In this regard, Wilma Liebman disagreed with the Supreme Court and told a group of businessmen meeting in her office that it was an incorrect interpretation of the law to say that the Board had to interpret the act in such a way as to be neutral on the question of unionization.
LL: The President also used the same process for Richard Cordray as the head of the new Consumer Financial Protection Bureau. Should his nomination also be called into question?
PS: Not in the same way. Cordray’s confirmation was held up only because the Senate R’s and some D’s (I suspect) wanted some changes in the law before he was named to this new consumer regulatory agency.
The law did not make the agency sufficiently accountable.
LL: Bottom line is this just a sheer power play?
PS : It is more than that. These recess appointments undermine legitimate government. We are a nation of law and order, “an experiment in ordered liberty.” Order is made up of those customs, practices and traditions which we honor and which in turn give us nobility of purpose. Individuals, families, units of government, society as a whole has an order. Our American order grew over two centuries, we inherited it. The Senates has grown over 200 years.
Unfortunately, President Obama has abandoned that governmental order, if you will, in order to award a prime constituency whose support he needs for re-election, organized labor.
His Vice President would not have agreed. He said in 2005: “‘As I said, we don’t work for the president. And no president is entitled to the appointment of anyone he nominates. No president is entitled by the mere fact he has nominated someone. That’s why they wrote the Constitution the way they did: It says ‘advice and consent.’” (Senator Joe Biden, Committee On Foreign Relations, 5/12/05)
LL: Do these actions create further political uncertainty for the business community?
PS: Absolutely and they will continue to chill business investment in the United States. Why produce here what you sell here with so much uncertainty in the law, with the law being changed in ways that are hostile to legitimate employer rights and interests and with these unprecedented recess appointments being made to continue those changes.
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A Senior Talent Producer at CNBC, and author of "Thriving in the New Economy:Lessons from Today's Top Business Minds."