Republican Warns Obama Not to Make Recess Appt -- A Trick Bush Used 7 Times to Stack Labor Board Against Workers
With the help of nominal Democrats Blanche Lincoln, Ark., and Ben Nelson, Neb., Senate Republicans succeeded in blocking President Obama's nomination of Craig Becker to the National Labor Relations Board. The GOP wasted no time warning President Obama from doing an end run around the Senate through a recess appointment of his nominee -- a maneuver that George W. Bushed used seven times to stack the labor board with anti-labor attorneys.
The NLRB essentially functions as an arbitrator in disputes between management and labor, interpreting labor law as a last resort before it gets to a court.
Becker's sin? He worked for the Service Employees International Union, and served as counsel to the AFL-CIO. I mean, we couldn't have an attorney who had represented the interests of unions to serve on the board, now could we? That would "color" his decisions, in the words of one lawmaker. But attorneys who have represented the interests of corporations in disputes against unions? Well they're just fine.
"I sincerely hope the White House does not circumvent the will of the Senate by appointing him when the Senate is out of session," said Senator Orrin Hatch, R-Utah, according to Carl Hulse of the New York Times.
Recess appointments take effect immediately, without the hindrance of a Senate confirmation vote. Next week brings a brief recess for the President's Day holiday.
Funny thing -- I don't recall Hatch having such a concern when former President George W. Bush made seven appointments to the board during a recess.
Let's see, there was Peter N. Kirsanow , a recess appointment made by Bush on January 4, 2006, and a partner in the law firm Benesch Friedlander Coplan & Aronoff. According to his biography posted on the firm's Web site, Kirsanow:
focuses his practice on representing management in employment-related litigation, as well as in contract negotiations, NLRB proceedings, EEO matters, and arbitration.
And what about Ronald E. Meisburg, appointed by Bush to serve as the NLRB's general counsel during a congressional recess on January 12, 2004? A tidbit from his bio:
Mr. Meisburg was president of the Energy and Mineral Law Foundation (1994 - 1995); a member of the Employment Lawyers Advisory Council of the National Association of Manufacturers (1996 - 1998) [emphasis mine]; and a member of the Industrial Relations Committee of the U.S. Council for International Business (1993 - 1998).
FYI, the National Association of Manufacturers is about as anti-union an operation as you're likely to find anywhere.
In January of 2002, Bush appointed Michael J. Bartlett to the NLRB on the last day of a congressional recess. From the Web site HR.BLR.com:
Bartlett is director of Labor Law Policy at the U.S. Chamber of Commerce[emphasis mine], a position he has held since 1998. From 1987 to 1995, he was a partner and special counsel with Verner, Liipfert, Bernhard, McPherson & Hand in Washington, D.C., following two years as vice president for employee relations and labor counsel for Eastern Airlines.
Surely you remember the Chamber of Commerce, the people leading the charge against health-care reform and the Employee Free Choice Act.
During the same recess in which he appointed Bartlett, Bush named William B. Cowan to the NLRB. Cowan founded the firm Institutional Labor Advisors, LLC, which, according to a 2003 announcement on Business Wire about the firm's merger with Venable LLP, "represents companies in reducing labor costs."
The group serves major utilities, natural-resource firms and other Fortune 500 companies with a comprehensive legal and consulting practice in collective bargaining,…
I could go on, but you get the idea. (In fairness to Bush, I should say that one of those seven recess appointees, Dennis P. Walsh, is a Democrat.)
The Republican recalcitrance on confirming Obama's appointments to the NLRB is about more than the immediate beliefs of any one nominee. There's also a structural issue in play. By tradition, the NLRB does not overturn its own precedent without the votes of at least three members. Right now, the board has only two members -- one, Peter C. Schaumber, is a Republican appointed by Bush during, you guessed it, a recess.
Bush's NLRB chairman, Robert J. Battista, is regarded as the most anti-labor board chairman ever, and overturned a number of long-standing labor-relations precedents and procedures. With only two NLRB members, the rulings of the Battista NLRB will likely be left to stand.
I should say that I do have a dog in this fight. A lifelong union member, I was on staff at the American Federation of Government Employees during the worst of Bush's efforts to bust the federal employee unions. I've seen first-hand the brutal, anti-worker animus of the Republicans.
Given the long precedent of recess appointments exercised quite freely by his predecessor, Obama really must make a stand and appoint Becker during the coming recess. He hung Erroll Souther, his nominee for chief of the Transportation Security Administration, out to dry because Souther refused to contradict the president's promise to support collective bargaining for TSA screeners. (Souther instead said he would assess collective bargaining's potential impact on workforce efficiency once he was at the agency.)
Here's a chance for the new, tough-talking Obama to strike a blow for American workers at a time when they could certainly use a little good news.