The federal board in charge of ruling on allegations of unfair labor practices may soon be back in business, thanks to the Senate filibuster deal reached on Tuesday. The National Labor Relations Board, which was effectively incapacitated for the last six months, could soon have the staffing it needs to do its job.
Under the terms of the deal made between Senate Democrats and Republicans, President Obama would have to drop two of his current nominees to the five-person NLRB. Organized labor would be able to choose the two replacement nominees, and Republicans have agreed not to filibuster them.
"Let's find two NLRB nominees that are pro-labor and I'll vote for them," Sen. Lindsey Graham, R-S.C., told reporters on Tuesday morning. The day before he had described the NLRB as a "rogue organization" and "a four-letter word in South Carolina."
Without a quorum of at least three members, the NLRB is, at best, a quasi-legal entity; whether that quorum currently exists depends on who you talk to. Three people sit on the board at the moment, but only one of them was ever confirmed by the Senate. The other two were placed on the board through presidential recess appointments. In January, the D.C. circuit court declared those appointments to be illegal. The NLRB appealed the circuit court decision to the Supreme Court, which will take it up in January 2014.
In the meantime, board members vowed to continue issuing rulings as if they did possess a quorum, though the legal status of those rulings remained unclear. An NLRB ruling can only be enforced if a U.S. circuit court finds it to be valid and issues an enforcement order.
Organized labor and its allies in Congress have been pushing for President Obama's recess appointments to be given a straight up-or-down confirmation vote from the Senate. Last week, 201 House Democrats co-signed a letter to Senate minority leader Mitch McConnell, R-Ky., demanding that his caucus allow a majority vote.
"This is a shameless attempt by Senator Mitch McConnell to shut down the NLRB," said Rep. Linda Sanchez, D-Calif., in a conference call with reporters last week. "Why attack the rights of hard-working Americans who are simply trying to protect themselves from being illegally fired or trying to make sure their employers negotiate in good faith?"
Republicans have argued that NLRB members Richard Griffin and Sharon Block were tainted by their recess appointments.
"I'm glad the administration has agreed to withdraw the two unconstitutional appointments of these two NLRB members and substitute two others,” Sen. John Cornyn, R-Texas, told CNN. “It relieves a lot of the objections we had to this overreach by the executive branch. And it sounds to me like, at least for today, that it's averted the nuclear option."
The only other current member of the board is chairman Mark Pearce, who was confirmed by the Senate in June 2010. His term on the board will end on August 27 unless he is re-confirmed. Under the terms of the Senate deal, the president's two replacement nominees should be confirmed by then. Senate Republicans have also agreed to allow a vote on Labor Secretary nominee Thomas Perez.
Communications Workers of America (CWA) president Larry Cohen described the news regarding Perez and the three Democratic NLRB nominees as "positive," but added that labor will continue to exert pressure until the confirmations go through.
"Our coalition of millions of Americans will continue to work together to fix the broken Senate and confirm the three Democratic members to the NLRB," he said.