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The judge noted that outside-the-window recess appointments were unknown before the Civil War, meaning the founders didn’t plan them, meaning they’re unconstitutional. The fact that they’ve been standard since the 1940s, that hundreds have been made — including appointments of Supreme Court Justice William O. Douglas and Secretary of State Lawrence Eagleburger — impressed him not at all.
Sentelle admitted that a parallel federal appeals court, the 11th Circuit in Atlanta, had actually upheld those outside-the-window appointments in a 2004 ruling. In his view, the court didn’t know what it was talking about.
Case Three: The Chutzpah of the GOP Union-Busters.
Sentelle opened a floodgate. In April the House of Representatives voted to freeze all NLRB funding until there’s a quorum, meaning forever. In May the D.C. Circuit struck down an NLRB rule that employers must post notices telling workers of their right to form a union. The judge, A. Raymond Randolph, a George H.W. Bush appointee, ruled that it violated the employers’ freedom of speech — meaning their right not to post on their shop walls statements they disliked.
On June 13, House Republicans introduced two new bills overturning existing NLRB rulings on election procedures and bargaining units. The next day, June 14, the NLRB’s poster rule was overturned again, this time by an appeals court in Richmond, Va. The judge, Allyson Duncan, a George W. Bush appointee and onetime Clarence Thomas aide, ruled that the board has no legal authority to make rules at all — it can only oversee elections and respond to complaints.
The board argued that the law defines its mission as protecting employees’ rights to organize and as “encouraging” unionization — and gives it explicit authority “to make, amend, and rescind… such rules and regulations as may be necessary” to do its job. Duncan wasn’t impressed. That’s chutzpah.
What’s going on here? Some House Republicans say they need to “counter the NLRB, which has become an activist pro-labor group under President Obama.” They say the board is supposed to be “a referee between management and unions.”
In fact, that’s the opposite of what the law says. The board exists, the labor act says, to balance “the inequality of bargaining power” between employees exercising their rights and employers who hold the cards. It’s there to defend and encourage unions.
The notion of the NLRB as unbiased referee was brought to Washington in 1981 by the Reagan administration. Reagan openly aimed to tip the balance back to pre-New Deal days and to put business back in the driver’s seat. He succeeded. Encouraging unions has disappeared from the national agenda. By no coincidence, union membership in the private sector, the core of the economy, has dropped to just 6.6% today from nearly 20% of the workforce in 1980.
No coincidence, either, that with declining union bargaining power came skyrocketing income inequality. Companies could spend less of each dollar on wages and distribute more in profits and executive pay.
Growing numbers of Americans are alarmed at our widening inequality, stagnant wages and narrowing opportunity. That scares the GOP and its business allies. They see themselves as victims.
Sort of like that orphan.
Contact J.J. Goldberg at email@example.com