Scapegoating the NLRB

Yesterday, it appeared that the Senate was on the verge of “going nuclear”—amending its rules mid-session to prevent the use of filibusters to block the president’s appointment of executive branch officials. The use of parliamentary tactics by a minority of senators to prevent the popularly elected President of the United States from appointing the heads of agencies that enforce key laws has reached unprecedented levels and threatens the ability of the president to govern. The Senate has been in gridlock ever since President Obama was re-elected. A concerted effort by Republican senators has prevented the passage of key legislation, blocked confirmation of federal appeals court judges, and blocked confirmation of President Obama’s nominees for Secretary of Labor, Administrator of the Environmental Protection Agency, Director of the Consumer Financial Protection Board, or any of the five nominees to the National Labor Relations Board (NLRB).

Today, it appears that a compromise has been reached that will allow the president most of his appointees, but not all. The Senate’s compromise forces the president to choose new nominees for the NLRB.

The Republicans have focused on two of the three NLRB nominees, Sharon Block and Richard Griffin, because they accepted President Obama’s recess appointment of them to the NLRB during an intra-session recess that two appeals courts have held to be unconstitutional. Several senators blame Block and Griffin for continuing to serve—at the president’s request—until the Supreme Court rules on the matter. Sen. Lamar Alexander and others take the position that the president can have his choice to run the agency, as long as it isn’t Block or Griffin. There is no logic to this, since they are simply carrying out the wishes of the president, but accepting an unfair punishment of these two public servants seems to be the price Democrats and President Obama will have to pay to break the gridlock.

The NLRB has been a special target of business lobbies like the Chamber of Commerce and the National Association of Manufacturers since it was created 78 years ago because it protects the right of employees to join unions and negotiate for higher wages, better working conditions and fairer treatment. The Boeing Corporation and the Chamber of Commerce have led a campaign for two years to defund and disempower the NLRB, ever since it dared to investigate charges of illegal discrimination by Boeing against union employees in Washington State. Part of their strategy has been a filibuster of President Obama’s appointments to the five-member NLRB, since it can’t decide unfair labor practice cases or seek court injunctions against illegal activity without a quorum.

Some Republicans, led by South Carolina Senator Lindsay Graham, claim that their opposition is principled, that the current NLRB members should not be renominated because the NLRB abused its power by trying to force Boeing to close its operations in South Carolina and move to Washington state. That is hogwash. The NLRB’s members had no role in bringing a complaint against Boeing (that was done by the independent General Counsel, who is not supervised by the NLRB’s members), and the case was never tried by an administrative law judge, let alone appealed to the National Labor Relations Board members.

Other senators and business spokesmen have claimed that the three Democrats among the president’s nominees are unfit to serve because they are too sympathetic to unions. In a recent op-ed, a Republican former NLRB member, Peter Schaumber, opposed their confirmation by the Senate because “the former chairman and union-side members of the board share organized labor’s view of the law.” Yet the fact that every Republican nominee in the last thirty years has shared organized business’s view of the law is no problem for Schaumber or any of the Republican senators filibustering the nominations. If sympathy for employers is not disqualifying, then neither is sympathy for unions.

The fact is, working Americans need a fully functioning NLRB, so we should be glad the Senate reached an agreement. But there was no reason, beyond blind allegiance to business interests, to block the president’s nominees to begin with. President Obama was right to act on this when the Senate wouldn’t. Block and Griffin are supremely qualified, yet they are paying the price for the Senate’s obstructionism.