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Senate Confirms Obama’s Labor Board Choice Ahead of GOP Senate Takeover

Bruce Vail

Though the Supreme Court decided that Obama's 2012 recess appointments to the NLRB exceeded his authority, they have since been approved through the standard process—meaning the Board can continue its work. (Wikimedia Commons)

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The U.S. Senate voted Monday to confirm the nomination of pro-union Democrat Lauren McFerran to the National Labor Relations Board (NLRB), an action that insures the panel will continue to operate normally as Republicans take full control of the Senate next year.

McFerran’s confirmation came on a 54-40 party-line vote, and was included in a package deal between Senate Democrats and Republicans to approve a number of President Barack Obama’s executive-level appointments before Congress adjourns for the year, according to a union staffer familiar with the issue. Republicans opposed McFerran, as they have opposed all other Obama nominees to the NLRB, in protest against some of the NLRB’s pro-union rulings since Democrats gained a majority of votes on the five-member panel following Obama’s election in 2008.

Union leaders lobbied forcefully for McFerran, motivated largely by fear that the scheduled December 16 retirement of current NLRB member Nancy Schiffer would leave the board with two Democrats and two Republicans, creating the likelihood of partisan gridlock through the remaining two years of the Obama presidency. Union leaders doubt that any pro-union Democrat can be approved by the Senate after the beginning of next year when full control will shift from Democrats to Republicans. At that time, Sen. Lamar Alexander (R-Tennessee), a McFerran opponent, is expected to assume the chair of the key Health, Education, Labor and Pensions (HELP) Committee, replacing Sen. Tom Harkin (D-Iowa).

Larry Cohen, President of the Communications Workers of America (CWA), has been the principal union leader commenting on this nomination. In a statement to In These Times following the McFerran vote, Cohen said:

As labor counsel to Sen. Harkin and the Senate HELP Committee, McFerran has extensive knowledge of labor and employment law. Her confirmation means the Board can continue to carry out its responsibilities under the National Labor Relations Act.

It is unfortunate that the nomination of another highly qualified candidate, former member Sharon Block, did not proceed despite a positive vote of the HELP committee before the Senate election recess. Soon-to-be Majority Leader McConnell, in his initial meeting with the President, demanded Block’s withdrawal even though he did not have the votes to block her confirmation and at least one Republican on the committee had voted for her. The President agreed; we should all view that as a wake-up call for attacks on workers’ rights in the next Congress.

The anti-worker ideological bent exhibited by the new Senate majority is without precedent since the passage of the National Labor Relations Act 80 years ago. Working people now are on notice that Sen. McConnell will be aiming at workers’ rights as a core part of his leadership, and with the full support and encouragement of the U.S. Chamber of Commerce.

Cohen’s reference to the failed Block nomination highlights the bitter partisan wrangling that has characterized Senate consideration of NLRB nominations in recent years. Block was initially named by Obama to the NLRB in 2012 in a recess appointment that was immediately challenged as unconstitutional. In a court case sponsored by the Chamber of Commerce and backed by Senate Republicans, Block’s opponents prevailed earlier this year when the U.S. Supreme Court invalidated her appointment in Noel Canning v NLRB.” Renominated by Obama in July, Block’s appointment was defeated again last month as described by Cohen.

What all this tells us is that, in the bigger picture, the confirmation process in the Senate is broken,” comments David Madland, a labor expert at the Democratic Party advocacy group Center for American Progress. Obama’s nominees are going to have a terrible time getting confirmed in a Republican Senate. Not just labor people but also nominees for the Treasury Department, and all the other departments. It just doesn’t look good at all,” for the next two years, he says. 

The Communications Workers of America are a sponsor of In These Times. Sponsors have no role in editorial content.

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Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA’s Daily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper’s New York City headquarters and in the Washington, D.C. bureau.
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