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Senate Standoff Threatens Labor Board Shutdown

Bruce Vail

Sen. Lamar Alexander (Tenn.), the ranking Republican on the Senate Health, Education, Labor and Pensions Committee, has vowed to block Obama's appointments to the National Labor Relations Board.

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WASHINGTON, D.C. – A partisan political standoff in the U.S. Senate threatens to close down the National Labor Relations Board (NLRB) in August, further eroding workers’ rights and weakening the ability of unions to organize new members, according to several Democratic Party leaders who spoke at a Senate hearing this week.

Although the stand-off has been simmering for years, it takes on special urgency now because failure by the Senate to confirm new nominees for the board would paralyze the panel in August, said Sen. Tom Harkin (D-Iowa), chair of Health, Education, Labor, and Pensions (HELP) Committee. That’s because the current NLRB chair’s term of office will expire then, leaving the board without the three-person quorum legally required to conduct any further business.

The senators met on Thursday for the first and only hearing on the president’s five nominees before a committee vote next Wednesday. Obama’s slate includes current NLRB Chair Mark Gaston Pearce, a Buffalo, N.Y. labor lawyer who has held the office since late 2011, and two other sitting members, Richard F. Griffin, Jr., formerly the top lawyer for the International Union of Operating Engineers, and Sharon Block, a former NLRB staff attorney and aide to the late Sen. Ted Kennedy. The fourth and fifth nominees are both Republican lawyers associated with large law firms that represent corporations in legal struggles against their own employees. They are Harry I. Johnson III, a partner in the firm Arent Fox, and Philip A. Miscimarra, of the notorious anti-union firm Morgan Lewis & Bockius.

However, the biographies of the nominees were largely ignored by the senators from both parties, who spoke instead about the partisan standoff over NLRB appointments. Harkin charged that President Barack Obama has faced relentless filibustering of nominees” at NLRB since his election and that “[some] Republicans are just trying to shut it down.” The obstructionism, Harkin suggested, is based on an underlying Republican hostility to workers’ rights and an overt desire to see Obama fail in office.

This is about complete obstructionism,” agreed Sen. Elizabeth Warren (D-Mass.). Failure to confirm Obama nominees at NLRB and elsewhere has nothing to do with the individuals named, she said, but because they (Republicans) don’t like what the agencies do.” As evidence, she cited similar confirmation slowdowns at the Consumer Financial Protection Bureau, the Environmental Protection Agency and the Department of Labor.

One leading Republican denied these charges at the hearing, but nevertheless said he would not vote to confirm the five NLRB nominees, who are being presented together by Harkin in a package deal. Instead, Sen. Lamar Alexander (R-Tenn.) demanded that two sitting board members, Block and Griffin, resign their posts at once, and that Obama nominate replacements to be considered by the Senate sometime in the future. 

Griffin and Block are at the center of a legal fight over Obama’s recess appointment powers. Both received recess appointments in early 2012 (that is, they assumed their position without a confirmation vote by the Senate), and have been serving under a cloud ever since. The cloud darkened early this year, when the District of Columbia Court of Appeals ruled the recess appointments were unconstitutional. The two remain in a sort of legal limbo, continuing to sit on the NLRB while awaiting news on whether the Supreme Court will render a final ruling on the case.

Little was said about the rest of the nominees, either, except by Warren, who stated that she was willing to overlook her objections to Miscimarra, whose legal work has been largely anti-union, in the name of a bipartisan compromise that would see all five nominees confirmed.

In a conference call with news reporters earlier in the week, AFL-CIO chief Richard Trumka said the federation will be pushing hard for the package confirmation deal. That would restore the panel to full strength and provide the stability that the agency that has been missing for years, he said. And, like Warren, the AFL-CIO is willing to overlook its objection to the Republican nominees for the sake of breaking the deadlock, he said.

Trumka echoed Harkin’s warning that a failure by the Senate to act would mean that the NLRB will cease to function at all after August 27, when Pearce’s current term expires. The board is already hampered by the Court of Appeals decision on the recess appointments issue, he said, with lawsuits piling up to void many of the NLRB decisions signed by Griffin and Block. Failure to resolve the nominations deadlock this summer could well prevent the functioning of the board for years to come, he said.

Even if the Democrat-controlled committee approves the nominees on Wednesday, as seems likely, a Republican filibuster in the full Senate could effectively block approval.

Sen. Tammy Baldwin (D-Wisc.) seemed to speak for many labor advocates when she voiced doubts that Senate Republicans had any intention of allowing the NLRB to ever resume normal operations. I fear that some of my colleagues prefer that the board not operate at all,” she said.

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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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