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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Obama to Appoint Pro-Labor Becker to NLRB?

It looks like President Obama is going appoint Craig Becker to the NLRB with a recess appointment!  Like I said in my last post, appointments make a huge difference.  You can tell how good Becker is by how freaked out the Chamber of Commerce and Republicans are over the news.  Health care, student loan reform and now a great NLRB appointment.  It's been a wonderful week in DC.  

GOP Warns Obama Against Recess Appointments To National Labor Relations Board

From The Wonk Room blog

This week, Senate Health, Education, Labor and Pensions Committee Chairman Tom Harkin (D-IA) said that he expects President Obama to recess appoint former AFL-CIO and SEIU lawyer Craig Becker to the National Labor Relations Board (NLRB) after Congress adjourns at the end of the week. Becker’s nomination — as well as those of two other NLRB nominees — have been held up by conservatives in Congress.
The administration has been hinting for a while that a recess appointment for Becker is coming, and today Senate Republicans — who are using Becker’s nomination as a proxy battle over the Employee Free Choice Act (EFCA) — fired off a letterto Obama making their displeasure with these developments known:

We are writing to urge you not to overturn the bipartisan vote against the nomination of Craig Becker to be a Member of the National Labor Relations Board (NLRB) through a recess appointment. To do so would bypass the advice and consent traditions of the Senate…Taking this action would install a rejected nominee for an appointed term to the NLRB, setting an unfortunate precedent for all future nominations and future administrations.

Sen. John McCain (R-AZ), one of the principal authors of the letter, added that “if this administration chooses to recess appoint Mr. Becker, it would be just another example of putting the will of one special interest group over the will of the American people.”
These are pretty strong words from the GOP, claiming that Becker is a “rejected nominee,” who was voted down due to “the will of the American people.” You’d almost think he faced an up-or-down vote sometime.
However, if you thought that an up-or-down vote was ever held on Becker’s nomination, you’d be wrong. His nomination was filibustered, like so many others, as a motion to file cloture on his nomination was defeated by a 33-52 vote (with 15 senators missing the vote), eight short of the 60 needed to proceed to debate and a final vote.
So even if all of the non-voting members had voted no, Becker still would have received the approval of a majority of the Senate. But thanks to the Republicans using procedural votes to gum things up, Becker remains in limbo. And of course, conservatives didn’t seem to take umbrage with President George W. Bush’s multitude of recess appointments to the NLRB.
The NLRB has been in the spotlight this week because a case was heard by the Supreme Court that could invalidate more than 600 rulings that the board made while only two of its five members were in place. (The technical dispute revolves around whether or not two members constitutes a quorum). During oral arguments before the court, Chief Justice John Roberts directly asked why Obama has not simply solved the NLRB’s problem with recess appointments. And with the unprecedented obstruction that the Republicans are engaging in, that’s exactly the right question to ask.

UPDATEThe American Prospect's Adam Serwer adds:

Republicans have already acknowledged that their strategy is universal opposition to anything the administration wants to do, making the threat meaningless. Republicans have already killed all the hostages, and now they're demanding a chopper and a billion dollars transferred to a Swiss bank account. What's the point?

Think Politics Don't Matter?

Sometimes it's the behind the scenes appointments and regulations that can make a huge difference for working people.  Most people don't even know who Hilda Solis is, but the new Secretary of Labor has hit the ground running.  Here's a excerpt from an article in The Nation.  

"During the Bush years, the Department of Labor became a cautionary tale about what happens when foxes are asked to guard the henhouse. But since California Congresswoman Hilda Solis became labor secretary last winter, she has brought on board a team of lifelong advocates for working people--some of whom come from the ranks of organized labor--and has hired hundreds of new investigators and enforcers."

For more, go to: http://www.thenation.com/doc/20100412/kaplan.

Terrible TABOR

From Missouri NEA Legislative Update
by Otto Fajen

The House perfected HCS/HJR 87 (Allen Icet) on March 22 by a nearly party-line vote of 88-66.  HCS/HJR 87 is a constitutional spending limit similar to the Colorado provision known as “TABOR”, or the so-called “Taxpayer Bill of Rights.”  The HJR would impose a permanent, constitutional spending limit on state government and would limit annual growth in state appropriations to a cost of living adjustment factor plus a population growth factor.  The HJR even includes requirements for imposing further, permanent state income tax cuts if the spending limits are operational.
Missouri NEA strongly opposes this unneeded restriction.  Legislators should be able to construct a consensus revenue estimate and appropriate according to that estimate.  HJR 87’s limit would cause Missouri government to shrink year after year relative to the size of the overall economy.  TABOR-style limits are a proven failure and will permanently diminish the state's capacity to invest in education and other services we need in Missouri.

Watch a video on what TABOR has done to Colorado at: http://www.youtube.com/watch?v=kbF3_CiOtoM

Historic Step for Health Care!

I got this message from AFL-CIO President Richard Trumka today. What a historic moment! And it’s thanks to you. When I was at the Capitol last night lobbying House members to vote for the health care reform legislation, I took with me your strength and that of millions of union members and health care activists like you. Winning the historic health care vote in the House simply could not have happened without you. The 4 million calls you made to Congress, the rallies you attended, the e-mails you sent, the way you never stopped making your voice heard for health care reform—that’s what made the difference. Thanks to you, we are right on the verge of ending obscene insurance company abuses that have denied and canceled coverage because people had the nerve to get sick. Thanks to you, we’ll start getting health care costs under control, make sure employers meet their responsibilities and get health care to 32 million people whose lives have been at risk without it. And after a lot of hard work, this legislation will not force middle class working people to pick up the tab. (Read more about it all here.) The Senate must approve the final language this week. Please don’t stop now. Keep the pressure on your senators. Keep making your voice heard. I know you can do it. See a message from President Trumka here: watch  Sincerely, Richard Trumka, AFL-CIO President