- The Washington Times - Tuesday, April 9, 2013

President Obama made waves Tuesday by nominating three candidates to the National Labor Relations Board, even as the board’s authority is being questioned by the courts and Republicans plot to shut it down.

The NLRB has been operating in limbo since January, when a federal appeals court ruled that President Obama unconstitutionally appointed two board members, leaving Mark Gaston Pearce, the current NLRB chairman and a Democrat, as the only legal member of the board. But the NLRB, which must have at least three board members to issue decisions, has continued to operate in defiance of the court order.

House Republicans are poised to vote this week on a measure that would effectively shut down the board for the time being. The bill would prevent the NLRB from taking action until the depleted five-seat board has a quorum of at least three members, or until the Supreme Court rules on the constitutionality of the president’s controversial 2012 appointments.

“The American people deserve a board that will fairly and objectively administer the law,” Rep. John Kline, Minnesota Republican, and Phil Roe, Tennessee Republican, said in a combined statement. “In recent years, the board has instead advanced extreme policies harmful to the rights of workers and job creators. We intend to closely follow the confirmation process and expect the nominees to demonstrate a commitment to abandon an activist agenda.”

Republicans warn that 600 decisions by the board in the last year could be overturned by the Supreme Court. That could lead to all of those cases having to be re-tried, which they say would be an unnecessary expense for all parties involved.

“You’ve got unions out there and businesses out there that are basically paralyzed,” Mr. Roe said. “They don’t know whether to follow the NLRB rulings or not. They’ve wasted all this money and time and effort.”

The House Rules Committee on Wednesday will mark up the bill, which could hit the House floor for a vote as early as Thursday. While the bill is likely to pass the GOP-controlled House, it would almost certainly die in the Democrat-led Senate.

This comes after Mr. Obama angered Republicans and the business community when he made the three recess appoints — Richard Griffin, Sharon Block, and Terence Flynn — in January 2012. He argued that the Senate was on a break for the holidays, even though some Senate Republicans continued to hold pro forma sessions as opposed to taking a recess.

The business community sued, and in January a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled that Mr. Obama abused his power and violated the Constitution when he bypassed the Senate to fill vacancies on the board when the Senate was not in official recess.

The Supreme Court is expected to weigh in on the issue in the coming months, but until a final decision is reached by the high court, the NLRB board has continued to operate, much to the chagrin of Republicans and business groups.

“I think it’s extremely troubling that they’re thumbing their nose at the court order just so they can keep doing their partisan business,” said Fred Wszolek, spokesman for the Workforce Fairness Institute. “That can’t be rewarded. Their nominations should be withdrawn.”

On Tuesday, Mr. Obama renominated Mark Gaston Pearce, the current NLRB chairman and a Democrat, along with two new Republicans — Harry I. Johnson III, a partner at the law firm Arent Fox, and Philip A. Miscimarra, a partner at Morgan Lewis & Bockius — in a move that would give the NLRB a quorum.

That follows the president’s renominations of Mr. Griffin and Ms. Block in February, who have been serving on the board for more than a year without being approved by the Senate.

Republicans say the president needs to go through the Senate vetting process with the latest nominees.

“I think they have to go through the Senate process,” said Tennessee’s Mr. Roe. “There will be a really hard look at the Democratic nominees.”

The business community also has been vocal about the latest nominations.

Consider that a vote on the new nominees would likely include the controversial figures of Mr. Griffin and Ms. Block as an all-or-nothing package, David French of the National Retail Federation said these nominees would lead to the same old politics at the NLRB.

“Out with the old, in with the old,” he quipped. “They just reappointed a bunch of people who were part of the old regime. So it’s not exactly a refreshing of the environment at the NLRB.”

Susan Crabtree and Sean Lengell contributed to this report

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