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October 26, 2011

Adjourn And Appoint! We Can’t Wait – For Recess Appointments

-- by Dave Johnson

The Republicans are obstructing the government from operating. Judges, appointees, NLRB members, etc. are blocked with the purpose of keeping government from doing its job. This is taking a terrible toll on We, the People. The President has the power to do something about it, and it is time for him to use that power.

The NLRB Example

According to the National Labor Relations Board (NLRB),

"Congress enacted the National Labor Relations Act ("NLRA") in 1935 to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy."

The law: The NLRB exists to protect employees and employers, to encourage collective bargaining and to certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy.

But at the end of December the NLRB will again not have enough members for a quorum, and will be unable to make decisions. This is on purpose. Republicans have been blocking any appointments to NLRB in order to make this happen and prevent the Board from functioning. This will cause harm to the general the general welfare of workers, businesses and the U.S. economy.

A Look At One Case

Here is the kind of thing that’s going on because of this obstruction that is keeping the government from functioning. An example of the problems with the NLRB is the large backlog of cases, such as this one case that started in 2003. See this 2008 Variety story on the 2003 labor violation, NLRB rules against CNN, for background,

In a frequently scathing decision, a judge has ruled that CNN acted illegally and discriminatorily in terminating [in 2003] a subcontracting relationship with a firm that provided technical services in the cabler's New York and D.C. bureaus.

Arthur J. Amchan, an administrative law judge of the National Labor Relations Board, ordered reinstatement with back pay for 110 dismissed workers. Amchan said the root of the trouble had been CNN's desire to avoid bargaining with a union.

CNN denied the charges and said it will appeal the ruling to the full NLRB.

How bad was CNN?

In his ruling, Amchan found that unit to be "a sham" used to limit the hiring of any TVS workers in order to avoid having to negotiate with the NABET-CWA. The cabler's ultimate motive was "to achieve a nonunion technical work force in its Washington, D.C., and New York bureaus," said the judge, adding that CNN's "widespread and egregious" actions constituted a violation of the National Labor Relations Act.

From Broadcast Union News, NLRB vs CNN/Team Video Update,

He [the judge] ordered the immediate reinstatement of the 110 workers who were not rehired through CNN's scam hiring system, called for the restoration of the economic losses of all 250 workers and ordered CNN to recognize and bargain with NABET-CWA.

The judge declared that “CNN engaged in widespread and egregious misconduct, demonstrating a flagrant and general disregard” for workers' rights.

So CNN appeals to the full NLRB, and Republicans make sure there isn’t a full NLRB. (The rules are if one party objects to the decision it is suspended until the full NLRB can hear it. The strategy is every employer objects, and the Republicans keep the NLRB from being able to hear cases and make rulings.)

Now it is 2011, closing in on 2012. 110 workers terminated in 2003 to block a union, a judge ordered them back, Republicans block the NLRB from operating, and like hundreds of other cases, this case sits in purgatory...

The Value Of Recess Appointments

The NLRB is again about to be prevented by obstruction from doing its job, operating to protect America's employees and employers and to curtail certain private sector ... practices, which can harm the general welfare of workers, businesses and the U.S. economy. The President has the power to keep the NLRB and other agencies operating, by making recess appointments to fill positions when Republicans are obstructing.

But President Obama has been reluctant to use his Presidential power to make recess appointments. In 2010, after waiting 14 months, President Obama finally, finally, finally, finally, finally made just a few recess appointements to get the government operating,

Here is what is going on. President Obama is way behind in nominating people to vacant posts and judgeships. On top of this the Republicans have used the filibuster to block many of the candidates that Obama has nominated. In the case of the Labor Board there were only two people left serving on the 5-member Board when 3 are required to make rulings, and some 600 cases have backed up.

... Such use of legitimate power to make the government operate as it should is also known as "governing." Until today he has refused to use this power to get the government operating. Today he finally, finally, finally, finally put 15 people into positions where they can start getting their agencies operating.

Even that small gesture made a big difference to working Americans, which I wrote about in NLRB Success Shows Value Of Recess Appointments,

A government agency is blocked from functioning by obstructionist, party-over-country, Republican Senators. The President makes recess appointments to get government functioning again and the agency starts doing its job. The result: working people are protected. Today the NLRB issued modest new guidelines for union elections that will clear up many, many problems faced by employees.

... The Constitutional purpose of recess appointments is to keep government functioning. When vacancies are left unfilled it hurts all of us. But even though there are a large number of unfilled positions, many blocked by Senate Republicans, President Obama has made very few recess appointments. The result is a a public increasingly frustrated by the hobbled government.

President Bush made 171 recess appointments, Clinton 139. Bush used this power to appoint extremist ideologues, Clinton to get around Republican obstruction.

President Obama has been reluctant to govern make recess appointments because he does not want to upset the Republican opposition. He has made less than 40 such appointments so far.

The Constitutional Solution: Adjourn And Appoint

The NLRB, judges and other appointments are all being blocked by Republican filibusters. This is not politics, this is not bipartisanship, this is intentional obstruction to keep the government from operating. The Constitution foresaw this, and the President has a responsibility to apply the Constitution to do something about this. The Constitution gives the President the executive power. The President is supposed to do that job and use this power to get things done.

The Constitution is clear:

Article II Section 2: The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Article II Section 3: ...he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper;

If the House and Senate disagree on adjournment, the President can adjourn them. And when they are adjourned he can make recess appointments.

We can't wait. We have an extraordinary situation here, where one of the parties, as a political strategy, is obstructing for the purpose of preventing the government from operating. It is the duty of the President to keep the government operating.

Mr. President, the next time the Congress recesses without recessing, adjourn them and appoint the necessary NLRB members, judges, etc to get this government back in operation for We, the People.

This post originally appeared at Campaign for America's Future (CAF) at their Blog for OurFuture. I am a Fellow with CAF.

Sign up here for the CAF daily summary.

Posted by Dave Johnson at October 26, 2011 1:12 PM


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