Last July, President Obama nominated three attorneys to fill the five-member National Labor Relations Board (NLRB). But Republican senators have blocked action on nominees to the board, which has been operating with just two members since 2008.

Since then, the NLRB has issued nearly 600 rulings and five federal appeals courts have ruled that cases decided by the two current members—one a Republican and the other a Democrat—are valid.

But several employers objected to the two-person decisions and one, New Process Steel, which was on the losing end of several cases, appealed a decision against it claiming the NLRB’s ruling was invalid because just two members were sitting on the board.

On Tuesday, the U.S. Supreme Court heard arguments in the case. The AFL-CIO has filed a friend of the court brief that supports the case for a two-member board’s ability to issue decisions.

According to BNA’s Daily Labor Report (subscription required), in March 2003, the Justice Department’s Office of Legal Counsel issued a memorandum finding that “if the Board delegated all of its powers to a group of three members, that group could continue to issue decisions and orders as long as a quorum of two members remained.”

In December 2007, when the NLRB had four sitting members and the terms of two of them were set to expire, it delegated its authority to a group of three or more members. As the AFL-CIO brief points out:

The long and the short of the matter is that Congress has provided that once the full Board has delegated Board decision making powers to a designated groups of three or more members [which the Board did in December of 2007], two members of that groups may exercise the delegated powers….

For a more detailed look at the proceedings and the legal issues involved, see the Daily Labor Report and Slate’s coverage by Dahlia Lithwick

In an op-ed today in The Hill, AFL-CIO President Richard Trumka says the case “shouldn’t even have to exist,” and political maneuvering by Republicans has kept the NLRB shorthanded.

It’s an outrage that a decision-making body so important to the basic rights of working people is crippled by vacancies. Because the appointment of board members has been deeply politicized and repeatedly blocked, the NLRB has had just two members for more than two years.

After Obama nominated three attorneys to fill the board, including highly qualified and well-respected union-side lawyers Craig Becker and Mark Pearce, Republicans began their slime campaign. Writes Trumka:

No fans of honoring workers’ rights, the U.S. Chamber of Commerce and other Big Business interests have been trying to paint Becker and Pearce as biased or radical because they’ve served as union lawyers-without acknowledging that President George W. Bush’s first NLRB appointee was on the staff of the Chamber when he got his nod.

Trumka is calling for Becker and Pearce to be appointed during the upcoming spring congressional recess. When the AFL-CIO and other workers’ advocates urged Obama to use his recess appointment power to place them on the board in February, Republicans howled about the possibility of recess appointments. Says Trumka:

They’re falsely claiming that using recess appointments to seat them would be something new and sneaky. Those arguments have about as much credence as Republican talking points about “death panels” in the health care debate.

Recess appointments? Please. Seven of Bush’s appointments to the NLRB were recess appointments.

As Trumka says:

The hard-working people who make this country run deserve better. Let’s get Becker and Pearce seated.

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