If they were making a zombie horror movie in Washington, the National Labor Relations Board would have a starring role. It's dead, yet somehow keeps moving even as it rots away. This is due to President Obama's stubborn determination to stack the nominally independent federal agency with partisan, pro-union zealots. The chief executive is so devoted to that end that he has created a board whose decisions cannot withstand legal scrutiny.
The latest blow to Obama's NLRB came Tuesday when a three-judge federal appeals court panel threw out a rule that required all employers to put up workplace posters detailing some, though far from all, of their employees' rights. As the judges noted, the posters only included the kind of information that unions wanted workers to know -- like how to form a union -- but nothing unions didn't want workers to know, such as the procedure for decertifying a union or making sure dues weren't spent to support political candidates or causes that an employee opposed. Furthermore, the NLRB treated refusal to put up the poster as prima facie evidence of a hostile workplace.
Forcing businesses to post what amounted to pro-union propaganda was too much for the judges, but this was not the first time the judicial system waved a stop sign at the NLRB. Previous failed NLRB efforts included its charge that Boeing's decision to open a new aircraft assembly factory in right-to-work South Carolina was illegal retaliation against its union (the complaint was withdrawn when Boeing settled with its union), an effort to force businesses not merely to allow unions to view their internal financial documents but to provide copies (overturned by a federal court), and an attempt to speed up workplace representation elections to give an advantage to union organizers (also struck down by a federal court).
Traditionally, the five-member board includes three White House picks and two by the congressional minority party leadership. Thanks to resignations, the current board has only three Democrats, including chairman Mark Pearce; Sharon Block, a former Ted Kennedy staffer; and Richard Griffin, formerly the top lawyer at the International Union of Operating Engineers.
Griffin is a defendant in a federal racketeering lawsuit brought by a union local against dozens of IUOE officials. The suit alleges Griffin was party to an embezzlement scheme and its subsequent cover up. Now he's on the NLRB. Talk about the foxes guarding the henhouse. Obama put Block and Griffin on the NLRB by abusing the recess appointment process to such a degree that a federal appeals court ruled that the president had violated the Constitution.
The appeals court held that Obama had appropriated to himself the authority to decide when the Senate was in recess. The ruling likely renders illegal every action taken by the board since January 2012. Obama is appealing the decision, and the high court is expected to hear the case later this year. The ruling should be affirmed, Obama's usurpation of authority blocked, and Block and Griffin removed from the NLRB.