The U.S. labor board, whose legitimacy has been in question over disputed appointees, could return to full strength next month as part of a deal struck by the Senate in which the contested nominees will be withdrawn.
Senate Republican leaders today agreed to expedite confirmation of the National Labor Relations Board nominees in return for President Barack Obama withdrawing the Democrats he appointed 18 months ago when the Senate wasn’t meeting. The board hasn’t had five confirmed members since Obama took office.
The nominees, Sharon Block and Richard Griffin, were declared invalid on Jan. 25 by the U.S. Court of Appeals in Washington. The administration said the ruling applied to a single case and the board has continued to issue decisions. The case has been appealed to the U.S. Supreme Court.
“It’s a mess that absolutely has to be cleaned up,” Gary Chaison, a labor-law professor at Clark University in Worcester, Massachusetts, said in an interview. “The first order of business would be to take a look at everything its decided over the last year and to decide whether it want to continue with that.”
As of May, about 120 challenges of board decisions were pending in courts citing the appeals court ruling, board spokesman Gregory King said. The Washington-based U.S. Chamber of Commerce created a website to provide information for employers seeking to challenge decisions involving board members whose eligibility was questioned by the court.
The deal on the labor board appointees was reached after Democrats threatened a change in Senate rules that would prevent the minority party from blocking executive appointments to federal agencies.
As part of the pact, the Senate will speed confirmation of the labor board appointees provided Obama withdraw Block and Griffin, according to Senator John McCain, an Arizona Republican.
Senate Majority Leader Harry Reid, a Nevada Democrat, said today he hoped to have a confirmation vote on the NLRB nominees late next week or early the week of July 29, before the Senate recesses for August.
In May, a Senate committee approved five nominees including Block, Griffin, Chairman Mark Gaston Pearce and Republicans Phil Miscimarra and Harry Johnson, lawyers who represent management in labor disputes.
The board, now with three members, loses a quorum when Pearce’s term expires Aug. 27 unless the nominees are confirmed.
“It won’t go out of business,” Reid said today.
As of May, the board had ruled on 919 cases since the disputed appointments, including 215 after the court decision, Senator Lamar Alexander of Tennessee, the ranking Republican on the Senate Health, Education, Labor and Pensions Committee, said at a May hearing.
The board can ratify past decisions that haven’t been appealed, as well as internal appointments that have been challenged, said John Elwood, a former Justice Department official now at the law firm Vinson & Elkins LLP in Washington. The board can’t revisit decisions that have been appealed until the courts act.
The Supreme Court probably will move ahead with the recess- appointment challenge even though the disputed board members are being removed, he said.
“It’s conceivable that they might decide that they would rather not take the case given that the problem is solved for the near term,” Elwood said in an interview. “It’s still kind of an open question in this case. The odds are better that they’ll take it.”
Obama appointed Block and Griffin in 2012 after Senate Republicans blocked confirmation. At the time, House and Senate Republicans refused to declare a recess. The Senate held pro- forma sessions every few days, often lasting less than 2 minutes, to avoid calling a recess during which Obama could make appointments. Obama said the Senate was in recess when he named the two Democrats.
“It’s a larger principle, the ability to make recess appointments, and it really comes down to the question of the power of the presidency,” Chaison said. “There has been a tradition of presidents selecting people for the NLRB who are affiliated with that president’s party who are like thinking. No one in Congress would be aghast that the National Labor Relations Board is slanted in one way or another.”
Senator Tom Harkin, an Iowa Democrat and chairman of the Senate labor committee, said Republicans also agreed that when another slot opens on the board in late 2014, they won’t filibuster Obama’s nominee.
“We have a guarantee that for the remainder of Barack Obama’s term we will have a fully functioning NLRB,” Harkin told reporters. “That’s pretty nice.”
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