A political maelstrom may soon develop over the National Labor Relations Board, as Senate Republicans might finally have some leverage over Senate Majority Leader Harry Reid.
NLRB chairwoman and Democratic member Wilma Liebman’s term ended this past weekend, bringing the Board’s total membership down to just three members. There are two Democratic members, Craig Becker and Mark Gaston Pearce, and one Republican member, Brian Hayes.
President Barack Obama appointed all three of them, but the Senate only confirmed nominations for Pearce and Hayes. Obama recess-appointed Becker after the Senate rejected his nomination.
Becker’s recess appointment runs out at the end of the year, and the Board would lose its quorum if another member weren’t either recess-appointed or Senate-confirmed by then.
U.S. Chamber of Commerce labor policy expert Glenn Spencer wrote last week that “obviously” the NLRB is “moving quickly to get as much done as possible” before Becker’s recess appointment runs out.
After Liebman’s departure, Spencer reiterated that point: “Between now and then [the end of Becker’s recess-appointed term], the business community can expect rapid-fire regulatory activity from the Board that will negatively impact job creation.”
In an ironic but strategic move, conservative groups like LaborUnionReport.com are calling for Hayes, the lone remaining Republican member, to resign. A Hayes resignation would be part political protest, part procedural disaster for Democrats’ labor playbook. (RELATED: Cantor calls for repeal of Obama administration’s ‘job-destroying regulations’)
If Hayes resigned now, the NLRB would not be able to make any rulings or decisions until the Senate confirmed at least one more member nomination or Obama recess-appointed another member. That’s because a 2010 Supreme Court decision requires the NLRB to have a three-member quorum before it can act on anything.
In a letter to Hayes, LaborUnionReport.com argues it would be patriotic for the Republican to step down from his NLRB post. “Only you, at this moment in time, have the ability to stop this,” the conservative advocacy group wrote to Hayes. “Hopefully, your resignation will help incapacitate the NLRB until after the 2012 elections, when the American people will have the ability to democratically decide the role our government should be playing in propping up labor union bosses.”
If Hayes were to resign, Senate Republicans would be expected to hold the line on new NLRB nominations. And if Congress were to technically remain in session, Obama couldn’t “recess”-appoint another Board member.
Though Congress isn’t meeting right now, it’s not officially in recess. House Speaker John Boehner is keeping the House technically in session. That means Obama can’t make any recess appointments without Congressional approval.
Rick Manning of Americans for Limited Government told The Daily Caller that a Hayes resignation would put pressure on Congressional Republicans. “Of course, if Mr. Hayes were to resign, Mr. Hayes’ resignation would be futile if the Senate confirms someone to take his place,” Manning said.
Republicans could also cut a deal with Senate Majority Leader Harry Reid on Becker’s nomination. They could agree to approve Becker’s full term if Reid were to life his opposition to Obama’s nomination of a second Republican NLRB member. Obama nominated Republican Terence Flynn to serve on the NLRB member in January, but Reid has blocked his confirmation.
That kind of situation would restore an bipartisan balance to the NLRB: two Republicans and two Democrats. “The ultimate irony is, because of President Obama and Majority Leader Reid playing partisan political games to avoid a 2–2 split on the NLRB board, if Hayes resigned they would be faced with an inactive NLRB,” Manning said. “That’s called sweet political irony.”