President Barack Obama picked a Democrat and two Republicans to the U.S. labor board, including a lawyer who in 2011 faulted the agency’s prosecution of Boeing Co. for opening an airplane factory in South Carolina.
Obama today nominated Republicans Harry Johnson, a lawyer with Arent Fox LLP in Los Angeles who covers management-side labor and employment law, and Philip Miscimarra, a partner in the labor and employment group of Morgan Lewis & Bockius LLP, in Chicago, for the National Labor Relations Board. Chairman Mark Gaston Pearce, whose term end in August, was renominated.
If all three are confirmed by the Senate, the NLRB will be at full strength and without the uncertainty created when a federal court in January said three 2012 appointees were “constitutionally invalid.” The administration has appealed to the Supreme Court. Republicans have sought to stop the board from issuing decisions until the legal status is resolved.
“He’s trying to make them an offer they can’t refuse,” Gary Chaison, a labor-relations professor at Clark University in Worcester, Massachusetts, said in a telephone interview. “He’s come back to an incredibly contentious issue, but he’s come back to it in a fairly conciliatory way.”
Obama drew fire from business groups and Republicans in February when he nominated Democrats Sharon Block and Richard Griffin. Their 2012 appointments were ruled invalid because Obama had acted when the Senate wasn’t in recess, the U.S. Court of Appeals in Washington ruled Jan. 25. To prevent Obama from making appointments, House and Senate Republicans refused to declare a recess. The Senate then held so-called pro-forma sessions every few days that lasted less than 2 minutes.
Miscimarra, a labor lawyer invited to testify before a House panel in South Carolina on June 17, 2011, criticized the board’s acting general counsel, Lafe Solomon, for issuing a complaint against Boeing in an unfair labor practice case tied to building a factory in South Carolina, a state where laws forbid collective bargaining agreements that require union membership.
“The board’s general counsel acts like a traffic cop,” Miscimarra told the House Committee on Oversight and Government Reform. “But traffic citations don’t routinely involve impounding the car for five to 10 years. And that’s the practical effect when an NLRB complaint challenges major investment decisions.”
The board on Dec. 9, 2011, withdrew the complaint after Boeing reached an agreement with the International Association of Machinists, which had asked the board to get involved.
“As tradition requires, the president has properly nominated two Republicans,” Senator Lamar Alexander of Tennessee, senior Republican on the Health, Education, Labor and Pensions Committee, said in an e-mail. “As the Senate considers the nominees, the two individuals who were unconstitutionally appointed should leave, because the decisions in which they continue to participate are invalid.”
As of March, employers questioning the validity of Obama’s 2012 board picks had appealed 97 rulings since the court ruling. Hundreds of orders, decisions and routine actions by the board have been open to legal challenge.
Senator Tom Harkin of Iowa, chairman of the committee that will review the nominations, said he hoped Republicans would give timely consideration to the package of five nominees.
Obama “has taken an important step toward restoring stability to our system of labor-management relations, which has been in disarray since the D.C. Circuit’s decision,” Richard Trumka, president of the AFL-CIO labor federation, said in a statement. “Putting forward a full, bipartisan package of nominees to the NLRB is the right thing to do.”
The January court ruling also may be used to challenge rules from the Consumer Financial Protection Bureau, whose director, Richard Cordray, was appointed when the labor board members were named. The Obama administration said the ruling is limited to the company that challenged the NLRB’s decision in court. Obama today also nominated Cordray.
“The president is doing the right thing with the NLRB after exhausting every other possibility,” Fred Wszolek, spokesman for the Workforce Fairness Institute business and trade group that focuses on labor issues, said by telephone.
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