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Opinion: Columnists

NLRB finally achieves solidarity

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Opinion,Columnists,Sean Higgins,Campaign 2012

Like much of the rest of Washington, the supposedly independent National Labor Relations Board has been the scene of bare-knuckled partisan conflict for years now. But the White House may have finally found a way to resolve that: The new board will have no Republicans at all.

With no fanfare, Brian Hayes, the sole remaining Republican serving on it, stepped down Sunday as his term expired. That leaves just three people on the five-member board, which enforces the National Labor Relations Act.

Traditionally, the White House appoints three seats and allows the minority party to get two. Right now, all three members are Democrats appointed by President Obama.

In addition to Chairman Mark Gaston Pearce, they are: Sharon Block, a former staffer for the late Sen. Ted Kennedy; and Richard Griffin, former chief attorney for the International Union of Operating Engineers as well as a board member of the AFL-CIO's Lawyers Coordinating Committee.

These three people are the ones who will be enforcing federal labor regulations, overseeing union workplace elections and mediating labor-management disputes for the foreseeable future.

Big Business is bracing itself. Nobody I spoke to for this column could recall a period when the NLRB was able to act with such a one-sided quorum. "It is a fairly unprecedented situation," said Glenn Spencer, executive director of the U.S. Chamber of Commerce's Workforce Freedom Initiative.

The NLRB has indicated it intends to press ahead. "As long as the board has three members, it has a valid quorum," spokeswoman Nancy Cleeland told me.

That's despite the fact that it isn't clear decisions from the current board would even be legal. According to the National Labor Relations Act, members are supposed to nominated by the president and confirmed by the Senate.

But Pearce is the only one of the three who has actually been confirmed. Block and Griffin were recess appointees rushed through a year ago in a fairly obvious bid to circumvent Senate GOP opposition.

Obama has regularly used this power. But such appointments are -- in theory, anyway -- only supposed to be temporary, used for emergency situations when Congress isn't in session. They're not supposed to be a way to get around Senate approval entirely.

The president has used the tactic to install people on the NLRB like Craig Becker, a former Service Employees International Union lawyer who once argued that management "should have no right to be heard."

The Chamber of Commerce and 42 Senate Republicans have filed amicus briefs supporting a Washington state canning business's challenge to the constitutionality of the president's use of recess appointments. The case is expected to eventually go to the Supreme Court.

But that will take a while. Meanwhile, the makeup of the board isn't likely to change for months at least. Neither the White House nor the Senate have given any indication they are planning on putting forward any Republican nominees anytime soon.

It may be hard to find Republicans willing to serve anyway. The environment can be treacherous. After Hayes threatened to quit the board last year -- denying it a quorum to act -- the NLRB's inspector general later probed both him and another Republican board member, Terence Flynn, over allegations they had improper contact with the business community. Hayes was not found to have acted improperly, but Flynn was and subsequently forced out.

Even before there was an all-Democratic board, the NLRB under Obama raised eyebrows with its aggressive actions. Most notably, it pursued a complaint against Boeing, alleging the company's decision to open a factory in South Carolina -- a right-to-work state -- was retaliation against its union. (The case was later resolved when Boeing and the union came to terms.)

Now, the NLRB won't even have to bother with any members dissenting or otherwise slowing it down. The game goes a lot faster when you are all on the same team.

Sean Higgins (shiggins@washington examiner.com) is a senior editorial writer for The Washington Examiner. Follow him on Twitter at @seanghiggins.

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