Sen. Tom Harkin, D-Iowa, announced Thursday that the Senate Health, Education, Labor and Pensions Committee would vote on all five nominees to the National Labor Relations Board next Wednesday. Harkin’s announcement followed a two-hour hearing — which will apparently be the only hearing — on the five nominees, three of whom are currently seated on the board.
The five are likely to be approved by the committee but face an uncertain future in the full Senate. Sen. Bernie Sanders, I-Vt., predicted they would get stuck in limbo due to opposition from Republicans. “The majority should rule,” Sanders said.
“Many people just don’t want the NLRB to function at all,” said Sen. Patty Murray, D-Wash.
Republicans said they had concerns that the NLRB had gone beyond its role as a neutral arbiter between labor and management to instead become an activist group. Sen. Lamar Alexander, R-Tenn., said the issue was not the qualifications of the five but that the current three members attempted to ignore a court ruling that said they lacked a valid quorum.
Only one of the three current members, Chairman Mark Gaston Pearce, is unambiguously a validly appointed member. An appeals court ruled in January that President Obama overreached when he used recess appointments to place two others, Richard Griffin and Sharon Block, on the board last year. The problem was the Senate wasn’t technically in recess at the time.
The ruling retroactively invalidated the appointments of Griffin and Block. That has essentially frozen the NLRB because it needs at least three members to provide a valid quorum. The ruling could retroactively invalidate more than 1,569 cases. The NLRB initially tried to ignore the ruling but lawsuits by business groups challenging their rulings forced the board to ask the Supreme Court to resolve the issue. A ruling is possible later this year.
The White House opted to resubmit the three current NLRB members to the Senate along with two GOP nominees, Harry Johnson and Philip Miscimarra. Democrats hope that by presenting a full slate of nominees they can avoid a Republican filibuster.
That’s unlikely, however, because the NLRB can function with a simple 3-2 majority making all decisions. Republicans know that Johnson and Miscimarra can be outvoted on every issue and those votes would be valid under the board’s rules. Given the NLRB’s recent pro-labor tilt, the GOP is unlikely to agree to a straight-up vote on Obama's nominees.
Democrats cried foul throughout the hearing, accusing Republicans of unprecedented “obstructionism” in causing the situation. Alexander shot back that the White House was unprecedented in its use of recess appointees to place Democrats on the NLRB.
“Looks like everything is falling into place,” joked Sen. Al Franken, D-Minn.