WASHINGTON -- With the Senate about to consider President Obama's nominees to the National Labor Relations Board, Democrats and labor groups are growing concerned that Republicans will block the administration's left-leaning nominations, rendering the board inoperable once a current member's term expires in August.
The five-member board, which is tasked with enforcing labor law and settling disputes between companies and workers, must have a quorum of at least three members in order to issue decisions. It currently has the bare minimum -- and only because of the president's recess appointments to the board, which have been jeopardized by an unfavorable appeals court decision, known as Noel Canning, that deemed them unconstitutional in January.
With Obama's nominees now requiring confirmation, union leaders worry that some Republicans will see their wish of a non-functioning board come true, leaving labor disputes tied up indefinitely.
"This is not what democracy looks like," said Larry Cohen, president of the Communications Workers of America union. "These cases are not about unions. They're about working people. ... The bottom line is that for 80 million private-sector workers, this is the only agency that protects their rights."
The Senate Committee on Health, Education, Labor and Pensions is set to hold a hearing on the nominees on Thursday. The administration has sent the Senate a full bipartisan slate of nominees for review, including two Democrats currently serving under recess appointments, Sharon Block and Richard Griffin. Their seats are now unstable due to the GOP-backed Noel Canning lawsuit. (Two of Obama's five total nominees are Republicans, and three are Democrats.)
Republicans have assailed the Obama-era labor board for its rules and decisions seen as favorable to unions, with Sen. Lindsey Graham (R-S.C.) going so far to say that an "inoperable" board would be "progress." Graham and others were infuriated by a complaint issued on behalf of unionized workers against the Boeing Company in 2011, although that case was later resolved. They've also bristled at rules proposed by the board, like one that would require corporations to hang posters informing workers of their rights under the law.
Republicans have seized on the Noel Canning decision to argue that Obama's recess appointments, and, by extension, their rules and decisions, have been illegitimate all along. GOP senators have demanded that Block and Griffin step down in the wake of the Noel Canning decision, and that their appointments -- and any future nominations -- should go through the traditional confirmation process. Block and Griffin haven't resigned their posts, and the Noel Canning case is expected to be taken up by the Supreme Court.
The situation has created an inconvenient catch-22 for the White House and the labor board: The administration's recess appointments may well be tossed out, and yet Republicans appear unlikely to approve the clean nominations that they've publicly called for.
"A lot of Republicans would assume the board goes dark in August," said one congressional staffer, who asked not to be named in order to speak freely.
If Republicans do choose to block the nominees, it isn't clear what their public argument will be, given that they've asked the White House to send them nominees for confirmation in order to resolve the recess appointment debacle and keep the board running. But congressional Democrats suspect some Republicans may claim Block and Griffin are unfit for their seats on the board because they didn't step down as Republicans demanded after the Noel Canning decision.
"As the Senate considers the nominees, the two individuals who were unconstitutionally appointed [Block and Griffin] should leave, because the decisions in which they continue to participate are invalid," Sen. Lamar Alexander (R-Tenn.), ranking member of the Senate HELP Committee, said last month.
Cohen's Communications Workers of America union, for one, has deemed the scenario a "shell game" run by Republicans. "They stand for nothing except no board," Cohen argued.
On a call with reporters Tuesday, Richard Trumka, president of the AFL-CIO labor federation, said that "having our labor laws in disarray is causing real consequences in real people's lives."
"It's up to the Senate to do the right thing, to act quickly and confirm the president's full slate for the NLRB," Trumka said. "The less the board works, the more America's economy falls out of whack, as we see today with record inequality and a shrinking middle class."
As HuffPost reported in March, the obstruction of the labor board has indeed hurt plenty of people outside the Beltway, with scores of cases hung up in court ultimately because of the president's inability to make clean board appointments. One group of miners in West Virginia who were illegally discriminated against for being union members have waited nearly a decade for their case to be resolved, with two favorable decisions either thrown out or stayed because of procedural problems at the board.
Labor leaders have held up the near-paralysis of the labor board as just one of many reasons to change Senate rules, which currently allow the minority party to block any legislation, nominees or appointments they choose. Senate Majority Leader Harry Reid (D-Nev.) and other Democrats have declined opportunities to implement meaningful reforms, like requiring that senators who wish to filibuster actually speak and hold the floor.
"If people want to filibuster," Cohen said, "they should have to talk."