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.
The Justice Department responded by releasing a memo maintaining that appointments made during pro forma sessions are within the bounds of the Constitution. But on Jan. 25 a U.S. Court of Appeals for the District of Columbia panel invalidated the appointments, declaring they were not made during a Senate recess.
Sen. Lamar Alexander (R-Tenn.), ranking member of the Senate Health, Education, Labor and Pensions Committee, called on Block and Griffin to leave the board, citing the Court of Appeals decision, but they chose to stay and have participated in more than a thousand cases that, Alexander said, are subject to being vacated if the Supreme Court finds the appointments unconstitutional.
In April, Alexander introduced legislation that would prohibit the NLRB from taking any action until the board members constituting the quorum have been confirmed by the Senate.
On May 22, the Senate Health, Education, Labor and Pensions Committee sent the entire slate, which Sen. Tom Harkin (D-Iowa), the committee chairman, characterized as “as exceptionally well-qualified package,” to the Senate floor for a vote. There it has festered under threat of filibuster.
Sen. Amy Klobuchar (D-Minn.) said the board’s “impact is critical to workers” and that lawmakers have “a responsibility to show some leadership and begin the process of vetting these nominees in the Senate so the NLRB can get back to work.”
The NLRB, she said, works to prevent children from being exploited and forced to work instead of going to school, institutes fair pay laws that ensure women get equal compensation for equal work, and oversees working conditions to protect people from being injured on the job and laws that uphold the fundamental rights of workers to organize.
“This is about providing stability and consistency to workers and businesses, but it is also about doing what is right for American families,” Klobuchar said. “My mom was a teacher. She taught public school until she was 70 years old so I have seen firsthand how important it is for workers to have that right to organize, to have that right to make their case. This is why I have always believed we need a good NLRB, a fair NLRB.”
But business interests maintain the board is overly protective of labor interests, particularly during the Obama administration. Bruce Josten, executive vice president for government affairs at the U.S. Chamber of Commerce, said the current board has pursued “an aggressive agenda favoring the unions.”
G. Roger King, an attorney representing the U.S. Chamber of Commerce, said the current board has “exercised no restraint and indeed has pursued an aggressive agenda of overturning decades of precedent and greatly expanding the reach” of the law of the National Labor Relations Act.
“Employers, especially small- and medium-sized entities, are having great difficulty attempting to draft policies that will comply with the board’s recent decisions,” King said. “…Recent board decisions and others make it very difficult to determine what is the state of the law. This leads to the unfortunate conclusion that the current board, through the votes of its recess appointees, is engaging in a subjective, overreaching and results-oriented campaign to find both union and non-union employers guilty of violations of the National Labor Relations Act.”
Sen. Lindsey Graham (R-S.C.), a longtime NLRB critic, has offered three amendments to the agency’s budget proposal intended, he said, to protect businesses from the board’s job-killing decisions.
“The NLRB has been the Grim Reaper of job creation,” Graham said, noting that “they seem hell-bent on interjecting themselves into private sector business decisions for purely political reasons.”
“On issue after issue the NLRB is destroying jobs and making the United States uncompetitive in the international marketplace,” he said.
Graham wants to prohibit the board from permitting small groups of employees to organize separately in the same workplace, citing a 2011 decision that said unions can essentially organize mini bargaining units. He also wants to limit the board’s use of funds to streamline and shorten union-organizing elections and prevent the NLRB from using funds to sue states over secret-ballot election requirements.