WASHINGTON — President Barack Obama is nominating three candidates for full terms on the National Labor Relations Board, which has been in limbo since a federal appeals court invalidated his recess appointments to the agency.
Obama on Tuesday urged the Senate to move swiftly in confirming the members — two Republicans and one Democrat — along with two other Democrats he nominated in February. That would fill all five seats on the board.
But it is not clear whether Republicans will go along with the package of nominees. The labor board has been a partisan lightning rod during Obama’s presidency, with Republican lawmakers and business groups furious over decisions and rules they say are aimed at helping labor unions win more members.
The move comes as House Republicans prepare to vote this week on a measure that would effectively shut down the board until it has permanent members confirmed by the Senate.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled in January that Obama violated the Constitution when he bypassed the Senate to fill vacancies on the board. Since then, Republicans have claimed the board lacks any legitimacy to act.
The White House has insisted the appeals court decision is wrong and plans to appeal it to the Supreme Court. But the ruling has prompted employers in more than 100 cases to claim the board lacks authority to take action against them because two of its members are not there legitimately. It also has frustrated labor unions who worry the board can’t crack down on unfair labor practices.
Obama is renominating board Chairman Mark Pearce, a Democrat, and nominating two new Republicans to the board — management-side lawyers Harry I. Johnson, III and Philip A. Miscimarra.
Miscimarra, a labor lawyer invited to testify before a House panel in South Carolina on June 17, 2011, criticized the board’s acting general counsel, Lafe Solomon, for issuing a complaint against Boeing in an unfair labor practice case tied to building a factory in South Carolina, a state where laws forbid collective bargaining agreements that require union membership.
“The board’s general counsel acts like a traffic cop,” Miscimarra told the House Committee on Oversight and Government Reform. “But traffic citations don’t routinely involve impounding the car for five to 10 years. And that’s the practical effect when an NLRB complaint challenges major investment decisions.”
The board on Dec. 9, 2011, withdrew the complaint after Boeing reached an agreement with the International Association of Machinists, which had asked the board to get involved.
The president had also nominated Democrats Sharon Block and Richard Griffin to full terms on the board in February. They have been sitting on the board since January 2012, when Obama made the recess appoints after Senate Republicans vowed to block Obama’s NLRB nominees. Republicans complained the board was issuing too many pro-union decisions.
The White House hopes that Senate Republicans will favor the five-member package nomination of two Republicans and three Democrats. Both Republican nominees have passed muster with GOP leadership.
“I urge the Senate to confirm them swiftly so that this bipartisan board can continue its important work on behalf of the American people,” Obama said in a statement.
The president claimed that he made the recess appointments last year while the Senate was on a break. But the appeals court panel ruled that a recess occurs only during the breaks between formal yearlong sessions of Congress, not just any informal break. It also ruled that a vacancy must come into being during a recess in order to be valid.
The White House says the first-of-its-kind ruling runs contrary to more than 150 years of practice and would invalidate hundreds of recess appointments in Democratic and Republican administrations.
AFL-CIO President Richard Trumka expressed his support for the five-nominee package, noting it includes Republicans “who have views on labor relations matters that we do not agree with. But working people need and deserve a functioning NLRB, and confirmation of a full package will provide that stability.”
Larry Cohen, president of the Communications Workers of America, urged Senate Majority Leader Harry Reid to move the nominations quickly.
“If the nominations are blocked by the Republican minority, Majority Leader Reid must be ready to confront that obstructionism to keep this agency functioning,” Cohen said.
House Republicans are expected to pass a measure this week that would prevent the NLRB from conducting business until the Senate confirms new members constituting a quorum or the U.S. Supreme Court decides the board has the authority to act. But the measure is not expected to make any headway in the Democratic-controlled Senate.
Material from Bloomberg News is included in this report.