Labor Appointments at Ground Zero of Nuclear Option Fight

WASHINGTON – A showdown is looming over President Obama’s nominations to fill three vacancies on the National Labor Relations Board, and Democrats may prove willing to play a wild card in order to get the job done.

Senate Democratic Leader Harry Reid announced that he intends to employ the “nuclear option” if Republicans continue to block consideration of the board’s five nominees – change Senate rules to prohibit the filibustering of White House choices for administration posts, meaning nominees will be required to garner only 50 votes as opposed to the current 60 for confirmation.

“We shouldn't be waiting around here for months and months to get a vote on a nomination,” Reid said by way of explanation.

But Senate Republican Leader Mitch McConnell, of Kentucky, maintains Reid is caving in to threats from organized labor. Union leaders have expressed concern that the board will cease functioning and be rendered impotent in resolving labor disputes if the open positions aren’t filled by the end of August.

“I know Washington Democrats are getting a lot of pressure from big labor union bosses and other far left elements of their base to do this,” McConnell said. “These folks have told Democrats it’s time to pay up, and they don’t have much time for things like the democratic process or the rule of law. They raised a ton of money for Democrats, and now they want the special-interest treatment they believe is owed to them. That’s why we see the other side cooking up phony nomination fights -- because they want to go nuclear, but they know the facts simply aren’t on their side to justify doing so.”

The claim that Obama’s nominees are being treated unfairly “is essentially at odds with reality,” McConnell said. Republicans are opposing the NLRB nominees because they already are serving on the board, placed there as a result of the president utilizing what the U.S. Court of Appeals for the District of Columbia found were unconstitutional recess appointments.

“So what I’m saying to President Obama and his friends on the far left is this: the facts show you’re getting treated pretty well on nominations as it is,” McConnell said. “But if you’d like more confirmed – if, for instance, you want the Senate to confirm your nominees to the NLRB – then don’t send us nominations that have already been declared illegal by the courts. We’ve already said that’s not going to happen.”

But Rep. Linda Sanchez (D-Calif.), asserted that the attacks are motivated by ideology.

“More than 80 million private sector employees rely on the National Labor Relations Board for protection from unfair labor practices,” Sanchez said. “By threatening to shut down the NLRB’s ability to function, Sen. McConnell and Senate Republicans undermine the very foundation of our country's labor laws and workplace protections.”

The NLRB should be fully functioning, Sanchez said, “so that workers are on equal ground with their employers.”

NLRB operations can best be described as chaotic over the past several years. Created as part of President Franklin D. Roosevelt’s New Deal in 1935, the independent agency is charged with overseeing labor union elections and investigating complaints of unfair labor practices. Members are nominated by the president and confirmed by the Senate.

Beginning in December 2007 and lasting through March 2009, the five-member Board had only two members as a result of President George W. Bush’s refusal to make some of the appointments and the Senate’s refusal to approve those he nominated. The board, prior to losing its quorum, voted to delegate authority to the two remaining members until the vacancies could be filled.

Those two remaining members issued more than 400 decisions from January 2008 to September 2009. But the U.S. Supreme Court, in a finding issued in June 2010, found that the two-member board lacked the authority to issue decisions and invalidated all of those dispensed during that period.

Like Bush before him, Obama has experienced difficulties getting his NLRB nominees confirmed with minority Senate Republicans employing procedural tactics that require his selections to attract 60 votes. In April 2009, Obama nominated Craig Becker, associate general counsel of the Service Employees International Union; Mark Gaston Pearce, a member of New York’s Industrial Board of Appeals; and Brian Hayes, the Republican labor policy director for the Senate Committee on Health, Education, Labor and Pensions, to fill three vacancies.

Becker's nomination proved to be the most controversial. Sen. John McCain (R-Ariz.) threatened a filibuster, maintaining the nominee wouldn’t give business interests fair consideration. Obama eventually placed Becker and Pearce on the board as recess appointments, which allowed them to serve until the beginning of the next session of Congress. The Senate subsequently confirmed Hayes for a full five-year term.

In January 2012, Obama once again found himself with NLRB vacancies to fill and GOP lawmakers once again blocking his efforts. He announced three recess appointment -- Sharon Block, Terence F. Flynn, and Richard Griffin – and immediately drew criticism from Republicans who asserted the Senate was still in pro forma session when the action was taken, rendering them unconstitutional and, therefore, illegitimate.