The National Labor Relations Board will have a "cloud" hanging over any rulings it makes after President Obama this week pushed through three recess appointments to the agency that don't pass "constitutional muster," a former member of the labor board said Thursday.
"My problem with it is I think there's going to be a cloud over whatever they do," said Dennis Devaney, a former NLRB board member and now a lawyer in Detroit. "...Anything they do is going to be subject to being undone, because they didn't have the authority to act."
Defying congressional Republicans, President Obama Wednesday announced recess appointments for three new NLRB board members - two Democrats and one Republican - even though GOP lawmakers insisted that the Senate was not technically in recess.
The move gives the board the ability to move ahead of decisions and policy rulings, but any actions could be tested in the Supreme Court on constitutional grounds, legal experts say.
Long a battleground between business groups and organized labor, the NLRB was the subject of unusually fierce political controversy in 2011.
Republicans on Capitol Hill and on the campaign trail slammed an NLRB battle with aerospace giant Boeing over the company's plans to relocate work from Washington state to a giant new non-union plant in South Carolina. The board also pushed through rules designed to speed up organizing elections and aid unions in organizing battles, in the face of fierce opposition from business groups such as the U.S. Chamber of Commerce.
With NLRB now dominated by Mr. Obama's appointees, the American business community fears the pressure could intensify.
"There are certainly a large number of issues before them that we're worried they're going to come down with bad decisions on," said Michael Eastman, executive director of labor policy at the U.S. Chamber of Commerce. "We know the board is interested in coming up with more creative remedies."
He pointed to a pending case between Roundy's and a union over whether the grocery chain was within its rights in barring union representatives from coming onto company property for organizing purposes.
Mr. Eastman also expects the NLRB to continue chipping away at employers' free speech in opposing union organizers.
Business groups will also be watching for a ruling that would allow non-union employees to bring co-workers into disciplinary meetings. Mr. Eastman said the fear is that many employees who did not get this opportunity can file a complaint that forces the company to reverse its disciplinary action.
"It's more of a 'gotcha' situation than anything else," he explained.
Mr. Obama's recess appointments received strong backing from top labor leaders, with AFL-CIO President Richard Trumka hailing the move. The expiration of the term of NLRB board member Craig Becker this week would have left the five-member board short of quorum to conduct much of its work.
Congressional Republicans complained that, in addition to bypassing the Senate, Mr. Obama made the recess picks just weeks after submitting the three nominations to the Senate. By contrast, Richard Cordray, Mr. Obama's recess pick Wednesday to head the new Consumer Finance Protection Board, had first been nominated for his post by Mr. Obama in July.
The labor board is also likely to face continuing fire from Republican presidential candidates, who travel to South Carolina after the New Hampshire primary next week. GOP hopefuls Mitt Romney, Rick Santorum and former House Speaker Newt Gingrich all ripped Mr. Obama's move Thursday and warned of overreaching by the board in the months to come.
"You have a runaway, anti-jobs, anti-business, pro-labor union board, and now they'll have an absolute majority that has never been confirmed," Mr. Gingrich said while campaigning in New Hampshire. "And one of the tools Congress has to act is to defund the agency."
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