Earlier this month, Labor Secretary Hilda Solis intimated that Craig Becker, a nominee for the currently non-functioning National Labor Relations Board, would get a recess appointment to the body. Now Tom Harkin is saying the same thing, telling CQ “It’s going to happen” during the Easter recess, set to begin March 26, or whenever the reconciliation bill is completed in the Senate.
I think we can dismiss the idea that this is idle chit-chat by the fact that business groups are mobilizing against the recess appointment:
The U.S. Chamber of Commerce led 20 business lobbying groups in urging President Barack Obama not to use his executive power to appoint union lawyer Craig Becker to the National Labor Relations Board.
“We urge you to respect” the “overwhelming sentiment of our members throughout the business community,” groups including the American Trucking Association, the National Association of Manufacturers and the National Retail Federation said today in a letter to the president. Tens of thousands of members have written to oppose Becker, the letter said.
The NLRB currently has two members, short of a quorum. As such, hundreds of labor disputes, even the ones where the two members agree, cannot be adjudicated. The Supreme Court recently heard a case arguing that the 2-member board could eliminate some of its backlog by ruling on cases where it had unanimity, but many of the Justices appeared to resist overruling the quorum law. As a result, “Decisions in hundreds of worker-employer battles could be thrown out if the Supreme Court rules against the NLRB. Such a ruling could also force the NLRB’s shutdown when the Senate and the White House can’t agree on who should be on the board.”
The board has had two members for over two years.
A recess appointment would signal that the President has an antidote to Republican obstructionism that he does not fear using. Craig Becker is a qualified nominee who falls in with the normal set of Democratic appointments to the NLRB. He should get his appointment.
UPDATE: I hadn’t seen this, but among the questions from Supreme Court Justices during the hearing yesterday on the NLRB’s functionality was Chief Justice Roberts saying “And the recess appointment power doesn’t work why?”.