Battle lines drawn in fight over nominees to labor board

Business groups are urging the Senate to call a timeout on President Obama’s nominees to the National Labor Relations Board, setting the stage for a high-stakes clash with labor unions.

Unless the nominees are confirmed by late August, the board will lose a quorum and become inoperable. 

Unions want to avoid that outcome and are putting intense pressure on Senate Majority Leader Harry ReidHarry ReidChris Murphy’s profile rises with gun tragedies Republicans are headed for a disappointing end to their year in power Obama's HHS secretary could testify in Menendez trial MORE (D-Nev.) to use the “nuclear option” if necessary to change filibuster rules and move the nominees through.

But business groups note that two of Obama’s five nominees are caught in a legal battle over recess appointments and say the Senate has no business confirming them until the Supreme Court resolves that fight.

“Ultimately, we fully support confirming a five-member board, but at present that seems unlikely given that two of the president’s appointments have been deemed unconstitutional by two appellate courts. Until this is ultimately resolved by the Supreme Court, we think it would be premature to confirm them,” said Jason Brewer, vice president of communications and advocacy for the Retail Industry Leaders Association.

The two NLRB nominees who are drawing the most controversy are Sharon Block and Richard Griffin. Obama installed them at the labor board via recess appointments, but a federal court has ruled the move was unconstitutional, putting the legitimacy of their service in doubt. The Supreme Court agreed last month to review the case.

Obama has asked the Senate to end the uncertainty surrounding the NLRB by confirming his five nominees, including Block and Griffin, for a full term.

That’s not sitting well with business groups who have accused the board of carrying water for unions during Obama’s time in the White House.

Geoff Burr, vice president of government affairs for the Associated Builders and Contractors (ABC), said the construction trade group has been telling Republican senators that it opposes confirmation of Block, Griffin as well as Mark Pearce, the NLRB chairman. 

“We are saying that we have concerns with confirming anyone to the labor board who is currently serving in any illegal recess appointment,” Burr said.

Burr said Pearce has “a track record of being a radical and a partisan” and that several business groups, along with the ABC, have sued to block several of the NLRB’s proposed rules during Pearce’s tenure.

Two of the most influential business lobbies in Washington have echoed the concerns about Block and Griffin.

“We have serious concerns about two of the nominees, Griffin and Block. They were improperly appointed and insisted on staying and issuing decisions, which has caused much uncertainty for the business community,” said Randy Johnson, the U.S. Chamber of Commerce’s senior vice president for labor, immigration and employee benefits.

Joe Trauger with the National Association of Manufacturers said the group has “concerns about nominees and appointees who show little respect for rulings made by the courts.”

Democrats say critics of the NLRB are using the court fight as a pretext to incapacitate the national enforcer of worker rights, insisting Obama’s nominees should be confirmed without delay.

Rep. Linda Sanchez (D-Calif.) on Tuesday said plans block a vote on the NLRB nominees “is a shameless attempt by [Senate Republican Leader] Mitch McConnellAddison (Mitch) Mitchell McConnellGun proposal picks up GOP support Children’s health-care bill faces new obstacles Dems see Trump as potential ally on gun reform MORE to shut down the National Labor Relations Board and their ability to protect hard-working Americans from unfair labor practices.”

Pressure is growing on the Senate to act before Congress departs for its August recess. Three members now sit on the labor board, which is enough to form a quorum, but that will change on Aug. 27, when Pearce’s term ends.

Republicans have expressed strong opposition to the nominations of Block and Griffin. McConnell, who decried the original recess appointments as an illegal power grab, has blasted Obama for sending nominees to the Senate who were ruled unconstitutional.

On Tuesday, House Democrats tried to ramp up pressure on McConnell in the NLRB fight. More than 200 signed onto a letter to the Senate GOP leader, organized by Sanchez and Rep. Joe Courtney (D-Conn.), that asked him not to block a vote on the nominees.

Workers organized by labor unions were also on Capitol Hill Tuesday making the case to keep the board open. Labor is waging a massive media blitz for the NLRB nominees with online and print ads, social media organizing and petition drives.

Labor officials are among those pressing Reid to change the Senate’s filibuster rules — the nuclear option — so the labor board picks can move through the chamber with a majority vote

“We are for whatever it takes to get these nominations an up-and-down vote, and that may include changing the Senate rules to make it impossible for the Republicans to filibuster,” said Bill Samuel, director of government affairs at the AFL-CIO. 

Business group lobbyists say the nuclear option, a controversial parliamentary tactic, would be counterproductive and prevent the Senate from fully vetting nominees.

“The National Retail Federation opposes the ‘nuclear’ option. Invoking such a dramatic change in Senate rules by simple majority vote will drag the Senate further into the mud of partisan retribution. Moreover, the change will not improve the nomination process or ensure that nominees are properly vetted by the full Senate,” said David French, senior vice president for government relations, for the retailers’ group.

Nonetheless, union leaders expect Senate Democrats will move forward on changing the chamber’s rules this month.

“We believe that the Democratic caucus will take up a rules change on nominations next week or the week after, depending on the process in what they call ripening nominations on the floor,” Larry Cohen, president of the Communications Workers of America, told reporters Tuesday.

Both sides are watching the Supreme Court, which agreed to review a January court ruling that invalidated Obama’s recess appointments of Block and Griffin. That process is expected to go into next year; the high court will likely rule in 2014.

In the meantime, without action by the Senate, the labor board would be rendered ineffective. 

“[Pearce] goes off the board on Aug. 28. That means it’s Labor Day with no labor law. We will be saying throughout the labor movement that has to be made known,” Cohen said.