Labor is mounting an all-out push to fill the National Labor Relations Board (NLRB) as the agency faces the prospect of being sidelined for the rest of President Obama’s second term.
Unions of all stripes have told Senate Democrats that they need to move on all five of Obama's nominees to the board, even if it takes a controversial change to filibuster rules to make it happen.
“Without this, there's nothing [to protect workers],” said Larry Cohen, the president of the Communications Workers of America. “It's a floor, and now the floor is caving in as well.”
The clock is ticking. Without Senate action by August, the NLRB will be left with two members and three vacancies, which isn’t enough to form a quorum and take official actions. With Senate Republicans blocking many of Obama’s nominees, including those to the NLRB, unions fear the labor board will soon be left in a state of paralysis.
"Now, unless the Senate confirms members of the NLRB, the board will lose a quorum in August and will not be able to issue decisions and protect workers' rights," AFL-CIO President Richard Trumka told reporters.
The NLRB is vital to labor’s interests because it oversees union elections and investigates alleged violations of the National Labor Relations Act.
Business groups argue the NLRB has showed favoritism to unions during the Obama administration, and it has come under fire from the courts and Congress.
Last week, a federal appeals court struck down an NLRB rule that would have required employers to post notices about union rights in the workplace.
That came after a separate ruling in January that invalidated Obama’s recess appointments of NLRB members Sharon Block and Richard Griffin. That ruling left only the position of NLRB Chairman Mark Pearce unchallenged, casting doubt on the authority of the board to form a quorum and issue decisions.
The Obama administration petitioned the Supreme Court last month to review the appeals court ruling, but the president is trying to make the issue moot by pushing the Senate to confirm a full slate of five NLRB nominees.
Obama renominated Block, Griffin and Pearce for their seats on the board. In addition, he nominated two Republicans — Harry Johnson III, a partner with Arent Fox, and Philip Miscimarra, a partner at Morgan, Lewis & Bockius — to serve on the NLRB for the first time.
Business groups, many of which have joined in legal challenges to the NLRB, have bristled at Obama’s decision to stand by Block and Griffin.
“We want a fully functional NLRB, but we believe nominees who have been ruled invalid in the court shouldn't be included on the board,” said Geoff Burr, vice president of federal affairs for the Associated Builders and Contractors (ABC).
Burr said his association also opposes Pearce’s renomination “because he continues to pursue radical proposals that the courts have ruled that fall outside of the NLRB's statutory authority.”
Other trade associations have also expressed concern about the NLRB nominees.
“The [National Association of Manufacturers] has serious concerns about the predispositions of some of the nominees, but ultimately it is the members of the Senate who need to determine the suitability of the nominees,” said Joe Trauger, vice president of human resources policy for the Manufacturers.
The Senate Health, Education, Labor and Pensions Committee is set to hold a hearing Thursday on the five NLRB nominees. That will likely set off a long fight this summer as Democrats and labor unions try to overcome Republican opposition to win confirmation.
“We should have a bipartisan NLRB and it should function,” said Peter Colavito, the director of government relations for the Service Employees International Union (SEIU).
Last week, several union leaders — including Trumka, Cohen, SEIU President Mary Kay Henry and National Education Association (NEA) President Dennis Van Roekel — met with Senate Democrats on their Steering and Outreach Committee.
The Hill previously reported that participants in the meeting discussed the option of changing Senate rules through a majority vote to prevent the GOP from using a 60-vote filibuster against nominations.
“On this subject, we communicated that it's absolutely unimaginable that we'll have four years of this president, Obama, and not have a NLRB that can make decisions and not have a Democratic majority on the NLRB,” Cohen said.
Unions like the Communications Workers of America have joined a coalition called Fix the Senate Now, which is pushing Senate Majority Leader Harry ReidHarry Mason ReidTo Build Back Better, we need a tax system where everyone pays their fair share Democrats say Biden must get more involved in budget fight Biden looks to climate to sell economic agenda MORE (D-Nev.) to limit the use of the filibuster, in part to prevent Republicans from blocking Obama’s nominees.
“That's where it will take, in our opinion, at least a threat of change in the rules on how nominations are handled,” Cohen said. “They waste so much time on delay, delay and delay, and meanwhile the executive branch and many of the agencies are not functioning.”
Trumka said labor is prepared to put pressure on lawmakers if the NLRB nominations stall in the Senate.
“If they pass these guys and put them on the floor and let them have an up-and-down vote, then we will be talking to people to urge them to vote for this package," Trumka said. "Then we will be taking any necessary action beyond that that we think is appropriate to educate people.”
Pearce’s term ends in August. Without Senate action before then, only Block and Griffin would be left on the labor board.
“The focus of the labor movement has been this August deadline,” said Mary Kusler, the NEA’s director of government relations.
Republicans, in addition to fighting the NLRB nominees, have sought to curb the labor board’s power with legislation.
Last month, the House passed a bill that would stop the NLRB from acting until the Supreme Court rules on the recess appointments or the Senate confirms enough members to form a quorum. Sen. Lamar AlexanderLamar AlexanderThe Hill's Morning Report - Presented by Alibaba - Democrats return to disappointment on immigration Authorities link ex-Tennessee governor to killing of Jimmy Hoffa associate The Republicans' deep dive into nativism MORE (R-Tenn.) has introduced the same legislation in the Senate.
Despite the opposition to the NLRB, Kusler believes Reid has the power to resolve the fight over the labor board.
“We feel pretty confident that Sen. Reid will put forward a plan to solve this before August,” Kusler said.