Obama’s NLRB in Ruins

2008, a great year for Barack Obama.  2012? A Presidency mired in a mediocre economy, unconstitutional recess appointments, and low approval ratings.  Nowhere is the malaise more evident than at the National Labor Relations Board (NLRB). 

The “independent agency” dominated by President Obama’s appointees has piled on $386 million in regulatory costs, more than 12 million paperwork hours, and now much of Big Labor’s wish list.  Now, NLRB is staffed with three new appointees who have dubious constitutional status to regulate affected entities.

The previous attrition at NLRB, reminiscent of the White House’s own personnel exodus, has persisted since 2011.  Once operating with just three of its five board members, the lone Republican appointee, Brian Hayes, almost quit over a proposed rule that could quicken the pace of union elections.  Instead, he lamented “I considered resigning in an effort to render [concerns about the snap elections rule] moot.”

Had he done so, with Board Member Craig Becker’s recently expired term, the NLRB would have been left with Chairman Mark Pearce, and no one else to satiate Big Labor.  Becker actually had a real recess appointment, when the Senate stood in recess, as opposed to the three new fake recess appointments.

Becker’s term officially concluded because the President didn’t want to risk another fight in the U.S. Senate over his re-nomination. (Strangely, by using his “recess power” when the Senate wasn’t in recess, the President picked a whole new fight.)  Becker, former counsel to AFL-CIO, once famously argued that employers have no “cognizable” interest in union elections.  Really?  His brief tenure on NLRB demonstrated that businesses, and even legal precedent, were merely an annoyance.

For instance, Becker’s two main achievements, the snap elections proposal and mandating notification of union rights, were pushed through with little legal support or bipartisan support. 

The union notification rule alone imposes more than $386 million in direct costs, an inconvenient fact the President’s appointees buried in footnote 212 of the rule.  The regulation would also impose more than 12 million paperwork burden hours; for comparison, this is more than all EPA and Department of Energy rules combined in 2011.

The Board’s loss of Becker is a gain for business but President Obama already found replacements for his martyred ideological ally.  Last week Richard Griffin and Sharon Block were officially, albeit unconstitutionally, sworn in at NLRB.  Both have strong Democratic and labor-friendly ties.

Griffin, formerly of the International Union of Operating Engineers, shares some similarities to Becker.  Mr. Griffin also has ties with AFL-CIO; he was on their Lawyers Coordinating Committee.  And not surprisingly, he gave a generous $1,000 donation to Senator Obama in 2008.  The gift, apparently, was not forgotten.

President Obama’s second appointee, Sharon Block, served at the Department of Labor.  Block gained some experience on Capitol Hill, working for Senator Ted Kennedy’s HELP Committee staff as senior counsel.  Her political donations are less lavish, with just one $250 check to Senator Patty Murray in 2010.

Even if President Obama hadn’t appointed Block and Griffin, the NLRB was still prepared to operate, somehow, with only two members in 2012.  Late last year NLRB issued a final rule establishing the “normal functioning” of the Board, even though it wouldn’t have a quorum with two members.  If Member Hayes does make good on previous threats to resign, and courts strike the unconstitutional recess appointments, the President might as well rename NLRB “Mark Pearce;” he’ll be all that remains at the antagonistic agency.

It didn’t have to be this way for the President or the Board, but NLRB, like the President, exceeded its mandate and pushed too far left.  Will the legal and democratic process strip both down to size? 

In 2012, when Chairman Pearce and Barack Obama look around for a majority, they’ll surely wonder, “What happened to my supporters?”