Has any political watcher seen something like this before, a chairman of an executive branch agency getting involved in a political nomination battle like this? Highly unusual, especially before a highly partisan battle on the Senate floor, Monday’s cloture vote on the nomination of Craig Becker to the NLRB.

With the NLRB also before the Supreme Court in the appeal of New Process Steel v. NLRB, doesn’t this statement also undermine the NLRB’s case that two-member quorums represent an appropriate, legal delegation of authority? (For more background, see this Jackson-Lewis post, “U.S. Supreme Court to Decide Appeals Court Conflict Over NLRB Quorum.”)

A statement from Wilma Liebman, chairman of the National Labor Relations Board:

NLRB Chairman on Pending Nominations

WASHINGTON—In response to numerous press inquiries, National Labor Relations Board Chairman Wilma Liebman made the following statement regarding nominations to the Board of Craig Becker, Mark Pearce and Brian Hayes that have been pending before the Senate since July of 2009:

“I am disappointed that we still do not have a fully constituted Board despite the naming of three nominees last summer. The Board has been in limbo for a long time. For more than two years, the Board has had to operate with three vacancies, leaving only myself and Member Peter Schaumber to decide the hundreds of cases that come before us. We have done our best to carry out the Board’s important work, issuing more than 500 decisions in cases involving thousands of workers across the country. But our authority to do so has been challenged and now the Supreme Court will decide whether we can continue to function. At the same time, the Board has been unable to move forward on the most significant cases before it. I look forward to a time in the near future when the Board is back at full capacity resolving issues vital to American workers and their employers.”

The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees’ rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions.

Leibman is a Democratic appointee, but we’ve never before seen a Democrat or Republican member of an independent executive branch agency take such an overt, political role in a nomination.

The Jurist, an excellent website produced by the University of Pittsburgh School of Law, reports that the U.S. Supreme Court has agreed to hear a case about the validity of National Labor Relations Board rulings handed down by just two members of the NLRB:

The court also agreed to hear New Process Steel, L.P. v. National Labor Relations Board [docket; cert. petition, PDF]. The Court will consider whether the National Labor Relations Board (NLRB) [official website] has the authority to decide cases where only two of the five-member board are present. Section 3(b) of the National Labor Relations Act [29 USC § 153(b)] provides that three members is enough to constitute a quorum of the NLRB. The US Court of Appeals for the Seventh Circuit found [opinion, PDF] that the NLRB had acted appropriately and affirmed its decision in full. The US Department of Justice (DOJ) [official website] has urged the Court to uphold [JURIST report] all decisions by the two-member board.

Let’s be frank about the partisan politics the led us to this state: The reason the NLRB operated for so long without at least a three-member quorum is that the Senate Democratic majority refused to confirm President Bush’s nominees out of unhappiness with his labor policies. And, in 2007 and 2008, Majority Leader Harry Reid decided to start holding twice weekly pro forma sessions — often less than a minute long — in order to block recess appointments by President Bush. So this litigation and the Supreme Court’s review grow directly out of this partisan dispute, in which organized labor took a keen interest.

Although the politics of this probably falls outside the Supreme Court’s purview, overturning the two-member NLRB rulings would reward the strategy to block the recess appointments and encourage future Senate majorities to repeat the practice.

See also NLRB news release.