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The NLRB threat

| Saturday, Sept. 1, 2012, 8:58 p.m.

Mark Mix is president of the National Right to Work Legal Defense Foundation, a Virginia-based nonprofit organization that strives to eliminate compulsory union abuses through education programs and litigation. Mix spoke to the Trib regarding the foundation's recent court challenges to three of President Obama's appointments to the National Labor Relations Board.

Q: In January, President Obama made what his administration purports to be three recess appointments to the NLRB. What are recess appointments?

A: In our country's early days, when Congress only met for a month a year, there was a rational reason to allow the president to use recess appointment power to fill vacant seats in government (that normally would require Senate confirmation) when Congress was away. Today, it is used more as a political tool. In January, the president recess-appointed three members to the five-member NLRB, a board that has become extremely polarized and politicized over the last 25 years. When union officials have a president who is favorable to expanding union power over workers, the board is the primary vehicle for that expansion.

Q: So you believe the recess appointments were an attempt to stack the board with pro-union members?

A: Yes. This board has radically changed the way it does business. (For example), they are trying to force every private-sector employer in America to post a notice that basically step-by-step informs employees on how to unionize.

Q: Why does the foundation contend these appointments are illegal?

A: In order for there to be a recess of Congress for more than three days, there must be a concurrent resolution passed by (the House and Senate). That has not happened. The Senate is taking action, they are meeting in what is called pro forma session where they come in and gavel into session, anyone can speak, actions can be taken, unanimous consent agreements can be made. The Senate is still in session. Congress has not been in recess.

Q: How were the appointments justified?

A: What the president said is that he determined that the quality of the session of the Senate indicated to him that they were indeed in recess.

Q: Is that the president's decision to make?

A: No. (Apparently), it's not necessarily the quantitative function of the Senate, it's the qualitative action of the Senate that now allows the president to exercise his recess appointment power. That's ridiculous.

Q: So you think the president overstepped his constitutional authority in making the appointments?

A: I wouldn't say he overstepped his constitutional authority so much as he violated the Constitution itself. If you look at Article 1, Section 5, Clause 4, it's there in black and white. For a guy (like Obama) who claims he is a constitutional scholar and taught constitutional law, you'd think he would know that.

Q: How confident are you that the foundation will prevail in court?

A: Well, if the Constitution still governs the affairs of people in the United States of America, I am extremely confident we will win. If, in fact, there is a different interpretation that (the Constitution's) words are simply words on paper, then I fear for the country.

Eric Heyl is a staff writer for Trib Total Media (412-320-7857 or eheyl@tribweb.com).

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