The New York Times covers the President’s recess appointments of Craig Becker and Mark Pearce to the NLRB, “Deadlock Is Ending on Labor Board,” with a familiar exchange of hopes and fears for the new, activist board depending on your perspective. It closes with some interesting, speculation-inviting comments about potential NLRB rulemaking:

Harold P. Coxson Jr., a management lawyer and former Chamber of Commerce official, voiced concern that with Congress unlikely to enact legislation that makes it easier to unionize, the labor board “will make the difference in the debate.” Among the ideas that have stalled in Congress since the Democrats lost their 60-vote supermajority in the Senate is requiring snap unionization elections — within 7 to 10 days of pro-union workers petitioning for an election.

“We have heard that they are going to engage in rule-making that could impose ‘quickie’ union elections, perhaps in 5 to 10 days,” Mr. Coxson said. “The board will demonstrate with its agenda that they are not irrelevant.”

In an interview, Ms. Liebman declined to discuss the areas where the board might use rule-making.

“Rule-making is something that certainly academics have been talking about for some time,” she said. “I think it’s worth consideration. It’s often served up as the antidote to all the flip-flopping” between rulings by Democratic boards and Republican ones.

If rule-making proceeds, it could take place under a board makeup that will soon have a 4-1 makeup, Democratic vs. Republican members. (When will Becker and Pearce actually take office, anyway? The President announced his intent to make recess appointments, not the actual appointments.)

And here’s an interesting thought from Jeremy Lott, editor of the Capital Research Center’s Labor Watch, commenting on the U.S. Supreme Court’s consideration of the New Process Steel case dealing with the validity of two-member NLRB decisions.

For technical reasons, the Supreme Court is set to rule soon on whether the NLRB decisions of the last year-plus are valid. One labor watcher told me he hopes the justices throw the whole mess of them out. That way, he said, Becker and company would have their hands full for some time rehearing and reruling on the old cases. In his view, idle bureaucratic hands are a danger to our liberties.

Maybe. But these are capable people, and the work in those cases has already been done. Can’t imagine an adverse decision from the Court would cause that much of a delay.

P.S. On Wednesday, Shopfloor went an entire day without posting on Craig Becker and the National Labor Relations Board. Incroyable!

Although maybe the better exclamation is, iIncreíble! The White House announced the recess appointments in a Spanish news release, as well, “El Presidente Obama anuncia nombramientos de receso a puestos clave en el gobierno.”

The U.S. Supreme Court heard oral arguments on Tuesday in the case of New Process Steel v. National Labor Relations Board, litigation over the validity of decisions made by a two-member NLRB.

Reading the transcript of the arguments, this layman concedes that Sheldon Richie, the attorney for the petitioner, New Process, seems to have the statute on his side when arguing against a two-member quorum. Section 3(b) of the National Labor Relations Act states that the “Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise.”

Then again, the 7th Circuit upheld the force of the NLRB’s decisions made under the delegation to a three-member quorum, even when only two members were sitting.

The transcript reveals a brief discussion of recess appointments, especially timely given today’s reports that President Obama may make a recess appointment of SEIU counsel Craig Becker to the NLRB, even though the Senate effectively rejected his candidacy by failing to invoke cloture on his confirmation vote. (Katyal is Neal K. Katyal, Deputy U.S. Solicitor General, representing the NLRB):

JUSTICE GINSBURG: There are — there are two nominees, are there not?
MR. KATYAL: There are three nominees pending right now.
JUSTICE GINSBURG: Three?
MR. KATYAL: Yes. And they have been pending. They were named in July of last year. They were voted out of committee in October. One of them had a hold and had to be renominated. That renomination took place. There was a failed quorum — a failed cloture vote in February. And so all three nominations are pending. And I think that underscores the general contentious nature of the appointment process with respect to this set of issues.
CHIEF JUSTICE ROBERTS: And the recess appointment power doesn’t work why?
MR. KATYAL: The — the recess appointment power can work in — in a recess. I think our office has opined the recess has to be longer than 3 days. And — and so, it is potentially available to avert the future crisis that — that could — that could take place with respect to the board.

That said, creating an unquestionably legitimate quorum does not require the appointment of Becker. Two other, non-controversial nominees are pending — Mark Pearce and Brian Hayes. Their confirmation or recess appointments would create a four-member quorum.

• National Law Journal, “Labor Decisions at Risk as Justices Struggle With NLRB Authority“
• Associated Press, “Court to decide whether two-member NLRB can work
• Slate.com, “A case tests the arithmetical skills of the Supreme Court justices“

The Associated Press story notes important context: “When at full strength, the National Labor Relations Board has five members. But it has operated with only two members for more than two years because Democrats refused to confirm President George W. Bush’s nominees because of complaints that they were pro-business.”

The U.S. Supreme Court today holds oral arguments in the case, New Process Steel v. National Labor Relations Board. The question presented:

Does the National Labor Relations Board have authority to decide cases with only two sitting members, where 29 U.S.C. § 153(b) provides that “three members of the Board shall, at all times, constitute a quorum of the Board”?

As the ScotusWiki entry on the case explains: “The events leading to this case have their origins in late December 2007, when the Board had four members. With the terms of two of those four members about to expire, the Board delegated its authority to a ‘group of three or more members.’ One of those three members left a few days later, leaving two Board members – who have made all NLRB decisions since then.”

This dilemma was caused when President Bush’s recess appointments were blocked by Senate Democrats after Senate Majority Leader Harry Reid (D-NV) began the practice of scheduling pro forma sessions to prevent the occurrences of recesses.

The U.S. Seventh Circuit of Appeals on May 1, 2009, upheld a decision by the two-member board, recognizing the smaller quorum. On the same day, however, the D.C. Circuit ruled that the Board must have at least three sitting members. Several hundred decisions by the smaller NLRB could be in jeopardy.

Big Labor and its allies in Congress have challenged the legitimacy of the smaller National Labor Relations Board to argue for approval of President Obama’s nominees to the NLRB, including the controversial SEIU counsel Craig Becker. If the President decides to make Becker his first recess appointment — something that could occur as early as next week — Becker’s defenders will cite the Supreme Court case as one reason. But of course you don’t have to have to appoint a radical labor union counsel to achieve a larger quorum. You can simply start with Senate confirmation or a recess appointment of the other two nominees, Mark Pearce and Brian Hayes.

Earlier posts on Craig Becker.

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.