Labor Board Finally Gets Quorum

Recess appointments to NLRB – OK for Bush, but not for Obama

Posted on March 28, 2010 by Wendy Phillips

President Obama decided to fill 15 key administration posts by recess appointment on Saturday.  The appointments fill senior positions in the Treasury, Commerce, and Homeland Security departments, the office of the U.S. Trade Representative, and seats on the Equal Employment Opportunity Commission, the Farm Credit Administration Board and the National Labor Relations Board (NLRB).

However, it was Obama’s appointment of Craig Becker, a labor lawyer, to the NLRB, the federal agency that oversees relations between unions and employers, that drew intense fury from Republicans who argued that Becker would bring a radical pro-union agenda to the job.

The NLRB is an independent federal agency created by Congress in 1935 to administer the National Labor Relations Act (NLRA), the primary law governing relations between unions and employers. The Board is supposed to consist of 5 members appointed by the President to 5-year terms with Senate consent.  The terms of the Board members are staggered such that the term of one member expires each year. Because of the political nature of Board appointments (with the serving President’s party controlling three positions), the last couple decades have seen many vacancies on the Board.

The NLRB had been operating with only 2 members since the appointments of two Board members expired on December 31, 2007.  The current Members, Chairperson Wilma B. Liebman (Democrat) and Member, Peter C. Schaumber (Republican), have acted as a quorum and issued over 500 decisions.

The question of the authority of the 2-member Board to make decisions was brought before the U.S Supreme Court in the case of New Process Steel v. NLRB, on March 23, 2010.  The authority of a two-member Board to make decisions and carry on the business of the agency has caused a split in the circuits.

The D.C. Circuit has held that the 2-member Board does not form a quorum and therefore has no authority to render decisions.  On the other hand, the First, Second, and Seventh Circuits have found that such a Board was contemplated under statute (Section 3(b) of the NLRA) and can validly express the authority of the agency.  It would be an administrative catastrophe of epic proportions if the 500 decisions issued by the 2 member Board were vacated by the Court’s decision in the New Process Steel case.

In spite of the possibility of the Board being crippled by an adverse SCOTUS decision, Republicans blocked Obama’s attempt to move a package of three NLRB nominees through the Senate last month when 31 Republicans (joined by 2 Senate Democrats) blocked the nomination by denying Democrats the 60 votes needed to end debate on the nomination.

“The president’s decision to override bipartisan Senate rejection of Craig Becker’s nomination is yet another episode of choosing a partisan path despite bipartisan opposition,” said U.S. Senate Minority Leader Mitch McConnell.

McConnell also objected to Obama’s appointment of Mark Pearce, a labor lawyer, to the NLRB, because he said that both he and Becker are Democrats.

In a statement announcing the recess appointments, Obama said he needed to act because Republicans were refusing to exercise their legislative responsibility in the interest of scoring political points.

“Most of the men and women whose appointments I am announcing today were approved by Senate committees months ago, yet still await a vote of the Senate,” Obama said in the statement issued Saturday. “At a time of economic emergency, two top appointees to the Department of Treasury have been held up for nearly six months. I simply cannot allow partisan politics to stand in the way of the basic functioning of government.”

The Constitution gives a president the power to fill vacancies without the Senate’s confirmation when the legislative body is in recess.  “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session,” states Article II, Section 2. The recess appointees could theoretically serve without confirmation through the end of 2011, when the next Senate finishes its term. A recess appointment ends at the completion of the next Senate session or when a person is nominated and confirmed to the job, whichever comes first.

Democrats and union advocates call Republican opposition to the recess appointment to the NLRB two-faced and disingenuous.  Not only did Republican President George W. Bush make more than 170 recess appointments, but according to the Congressional Research Service, 8 of Bush’s recess appointments were to the NLRB.

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