As of yet, President Obama’s non-recess appointees to the National Labor Relations Board (NLRB) have not participated in issuing any major decisions. Recently, however, they participated in a cluster of decisions that suggest the new Board majority is apt to mimic the approach of the controversial Board majority that preceded them – they will aggressively pursue the interests of Big Labor in an effort to roll back the clock on the decline of union membership in the private sector.
A few weeks ago, Sharon Block and Richard Griffin participated in a decision noteworthy for its bigheadedness. Along with Chairman Mark Pearce, Block and Griffin “declined to determine” the constitutionality of President Obama’s non-recess appointments to the Board. Then, after restraining themselves from deciding an issue over which they have absolutely no jurisdiction, they declared that their non-recess appointments (along with that of Terence Flynn) were nevertheless entitled to a presumption of regularity. Many things can be said about the President’s unprecedented non-recess appointments when the U.S. Senate was still in session, but few would suggest a presumption of regularity should attach to them. Since the finding was entirely unnecessary and made by non-recess appointees who should have recused themselves from making it, the finding demonstrates a loose appreciation for the limits of their office, which does not bode well if long-standing principles of Board law stand in the way of a partisan agenda.