Reining In Obama’s Big Labor Activists

Earl Capps is well-known in South Carolina political circles for his blogsite, The Blogland of Earl Capps, where he discusses current events and issues related to South Carolina government and politics, as well as workforce and economic development and non-political matters.


Efforts by the Obama administration to pursue an aggressive pro-union agenda via the National Labor Relations Board (NLRB) suffered a major setback on Friday. A three-judge federal appeals court in the Noel Canning case unanimously found that recent recess appointments of NLRB board members violated the Constitution, ruling that “[b]ecause none of the three appointments were valid, the Board lacked a quorum and its decision must be vacated.”

If the ruling is upheld by the Supreme Court, to which the Obama administration is expected to appeal the case, it would be a long-awaited victory for Republicans and business organizations who have long objected to the Board’s growing reach into non-union workplaces and increasingly pro-union rulings. It would also be vindication for Senate Republicans who have sought to check the administration’s political agenda via the confirmation process, which the recess appointments bypassed.

In this case, attorneys for Noel Canning, a Washington State canning and bottling company, sought to appeal a ruling in which the Board ruled against the company and imposed a collective bargaining agreement after the company had refused to execute the agreement, claiming that wage-benefit packages for union members had not been agreed upon. In the appeal, the company’s attorneys argued that as the Senate was still meeting in pro forma session, three recess appointments made to the Board by the Obama administration were invalid. These appointments included:

  • Sharon Block, who filled a seat that became vacant on January 3,  2012,  when Board member Craig Becker’s recess appointment expired. Block was a former Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor, Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for Senator Edward M. Kennedy and received the John F. Kennedy Labor Law Award.
  • Terence F. Flynn, who filled a seat that became vacant on August 27, 2010, when Peter Schaumber’s term expired. Flynn, who has since left the Board, was previously Chief Counsel to former Board Members Brian Hayes and Schaumber, as well as an attorney in private practice, specializing in employment and labor law.
  • Richard F. Griffin, who filled a seat that became vacant on August 27, 2011, when Wilma B. Liebman’s term expired. Previously, Griffin was General Counsel for International Union of Operating Engineers and served on the board of directors for the AFL-CIO Lawyers Coordinating Committee.

In the ruling, the Appellate Court agreed with the attorneys for Noel Canning:

It is undisputed that the Board must have a quorum of three in order to take action. It is further undisputed that a quorum of three did not exist on the date of the order under review unless the three disputed members (or at least one of them) were validly appointed.  It is further agreed that the members of the Board are “Officers of the United States” within the meaning of the Appointments Clause of the Constitution, which provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” (p. 15)

The board presently has three members, two of whom are Block and Griffin (Flynn left the board in July of last year). Their removal from the board would reduce it to one member, leaving it unable to issue further rulings until new appointments could be made, as well as invalidate a number of recent Board rulings, such as the Noel Canning ruling. This could impact a number of controversial NLRB initiatives, including:

  • The Poster Rule, which would require workplaces to post notices about employees’ right to organize a union, remains on hold while the case is being appealed following split rulings where a South Carolina federal court struck the rule down and a Washington D.C. court upheld the Rule.
  • Several rulings in which the Board ruled the language of employee handbooks in non-union workplaces placed restrictions upon employee communication, which the Board argued could inhibit the ability of employees to organize a union if they chose to do so (Hyundai America Shipping Agency Inc. and Karl Knauz Motors).
  • A ruling (WKYC-TV, Gannet Co., Inc.) that overturned a five-decade precedent by directing employers to continue to withhold union dues after the expiration of a collective bargaining agreement.

Republicans were quick to seize upon the ruling as a chance to go after the NLRB. Tennessee Senator Lamar Alexander, the ranking Republican on the Senate Health, Education, Labor and Pensions Committee, demanded the resignations of those board members whose appointments were challenged in the ruling, calling the ruling “proof that the administration defied the Constitution’s separation of powers and its concept of checks and balances, which are the guard against an imperial presidency.”

Allen Gray, a lobbyist with Carolinas AGC, a construction industry association based in North and South Carolina, and head of the industry association’s human resources committee, said the court “followed the letter of the law” and predicted the ruling would “force the President to choose between picking nominees with more moderate positions who could win a confirmation vote or not appointing anyone at all.” Likewise, Senator Tim Scott (R-South Carolina) expected that future NLRB nominees sent to the Senate for confirmation should be willing to take less pro-union stances. Scott warned “the agency’s pattern of punishing states like South Carolina for their successful right-to-work policies has to end. Any future nominees must demonstrate a commitment to treat the families and businesses of pro-worker states just the same as anyone else.”

In addition to allowing many of the Board’s recent rulings to be vacated, the appellate court’s ruling – if upheld – could affect other recess appointments made by the Obama administration, most notably that of Rich Cordray, the head of the Consumer Financial Protection Bureau, who has come under fire from the banking industry for advocating excessive regulations and oversight.

The Obama administration is expected to appeal this ruling to the Supreme Court instead of conceding defeat to Republicans, who are eager to force President Obama to moderate the political tone of his nominees. With the GOP getting more aggressive about using the confirmation process to check Obama’s agenda, it’s clear that a high-stakes game between congressional Republicans and the White House is underway. Should the Supreme Court uphold the appellate court’s ruling, it would be a major setback for the administration and a major victory for those who’ve sought to rein in the NLRB’s radical pro-union agenda.

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  • http://www.adinakutnicki.com AdinaK

    The unions are the shock troops of the radical left. They are their hatchet men/women. As such, reining them in is priority number one.

    They are part and parcel of the revolutionary heads in the Obama regime. They use 1600 Penn Ave as a revolving door – http://adinakutnicki.com/2012/10/07/when-authenti

    BTW, the people will need to do the heavy lifting. The RINOS will not lift a finger.

    Adina Kutnicki, Israel – http://adinakutnicki.com/about/

  • kafir4life

    It's best to avoid buying union made garbage anyway. Any company that has become unionized is pretty much done for. The parasites will eat away at the productive capabilities and leave nothing but a valueless shell. Can you imagine being so foolish that you'll give your money (on purpose) to a union run company. For example, buying a GM car. For equivilence (let's assume a 25,000 vehicle), you get the exact same effect by burning 20,000 cash in a fireplace, give 3,000 to democrats such as Schmuckles Chumer and Stinky (bo). Purchase a $2,000 gift card for Big Macs and give it to Dickie Trumpka. Aquire 3,000 pounds of horse crap (Schumer and Obama will do) to put in your garage. Bada Bing Bada Boom – You got a GM equivilant.

  • jacob

    Years ago, an acquaintance of mine was engaged by a railroad company to carry out a bulletin for the
    wiring harness replacement of their EMD diesel-electric locomotives.
    He figured a week and three people for each locomotive but when the union steward learned of it, he
    told that guy that if he wanted the job, it was going to be TEN MEN AND FIFTEEN DAYS or else…

    So much for unions and a government bent on having them, because GM and Chrysler's bailouts was
    to salvage the union jobs going down the drain by their own doing, as the cars they were building were
    absolute crap and whoever could interpret a VIN from any such cars would run like from fire from
    anything assembled n a Friday or Monday and were the reason for people preferring Japanese and
    even European instead of American cars….

  • JacksonPearson

    The Appeals court gave Obama's hand picked NLRB a smack down. Now why can't the same federal court, uphold their Constitutional oaths, by bring themselves to look at Barry Soetoro's presidential eligibility, and/or ALL of his alleged forgeries?

    • Freedom Lover

      If only it would happen. (sigh)

      • JacksonPearson

        It would happen at a heart beat, if congress got off there dead butts!

  • κατεργάζομαι

    UAW stands for "U AIN'T WORKING!

    Why God Never Received Tenure at the University

    ~ Because GOD had only one major publication.
    ~ And it was in Hebrew.
    ~ And it had no cited references.
    ~ And it wasn't published in a refereed journal or even submitted for peer review.
    ~ And some even doubt he wrote it himself.
    ~ It may be true that he created the world but what has he done since?
    ~ GODs cooperative efforts have been quite "limited"
    ~ The scientific community has had a very rough time trying to replicate GOD's results.
    ~ GOD never applied to the Ethics Board for permission to use human subjects.
    ~ When one experiment went awry, GOD never tried to cover it up by drowning the subjects.
    ~ He rarely came to class, just told students to read the book.
    ~ Although there were only ten requirements, ALL students failed his tests.

  • bruce101

    all of the union leaders are communist traitors just like their boy bongo in the white house and like him they are not worth a good crap.i quit my union because they never helped me because they had favorites and i was not one of them so I was leaving work one evening when two large union thugs wanted to talk to me. so I told them to bother some else but they wanted to rough me up so I had to pullout my .45 and took their i.d. so that I would know who they were then told them if I ever saw them again I would kill them.