NLRB could be shut down in new year

The NLRB's action against Boeing made the agency a target of Republicans and business critics.

NEW YORK (CNNMoney) -- The National Labor Relations Board -- a top target of Republicans and business critics of the Obama administration -- could be sidelined early next year.

The agency, which is supposed to be governed by a five-member board, is down to three active members because of Senate Republican opposition to Obama's nominees. And one of them, Craig Becker, will see his term end at the conclusion of the current session of Congress.

That's a problem, because the NLRB requires a three-member quorum to do anything, like set rules or consider a complaint. President Obama has nominated four appointees in the last two years, none of whom have come up for a confirmation vote in the Senate.

"Unfortunately and perhaps unsurprisingly, some in Congress have refused to allow votes on nominees to the board -- not on the grounds of qualifications, but simply political maneuvering and desire to render the Board unable to enforce the law," said Josh Goldstein, spokesman for the AFL-CIO.

Unless the Senate quickly confirms Obama's nominations, which seems unlikely, or the president makes a new recess appointment to the board, the NLRB won't have its three-member quorum when Washington goes back to work in January.

A recess appointment wouldn't require Congressional approval, but it would be tough for Obama to do. Although the Senate isn't in session, it hasn't formally recessed, and its recess could last only minutes before the new session begins.

The typically low-profile agency has become a political hot potato since Obama took office, with Republicans charging the NLRB is too beholden to union supporters of the administration and is hurting job creation.

Earlier this year it filed charges against Boeing over the manufacturer's plan to shift production of some of is new 787 Dreamliner jets to a nonunion plant in South Carolina. The agency alleged that the new plant was punishment for past strikes by the International Association of Machinists against Boeing (BA, Fortune 500). NLRB critics, including Boeing, argued that no unionized Boeing workers were losing their jobs due to the new plant.

That case was dropped when the Machinists and Boeing later reached an agreement to keep production of a new 737 MAX plane at the unionized plants, and extend the union's contract with Boeing through 2016.

The Chamber of Commerce and Republicans are also upset with new union election rules approved by the NLRB on Wednesday that will shorten the time between when a union files for a representation election and when the NLRB will hold a vote. Critics charge the new rules were rushed into law because the board knew it would soon not have enough members to act.

After Becker's term expires, there will be one Democrat and one Republican member of the board. The last time the board fell to two members the Supreme Court ruled it could not take any action.

In January President Obama named a new Republican member of the board, Terrence Flynn, but the Senate never held a vote on that nomination either.

Earlier this month he nominated two additional Democrats, Sharon Block and Richard Griffin.

Griffin is currently general counsel for a union, International Union of Operating Engineers, and serves on the board of the AFL-CIO. Republicans and business groups are likely to do whatever they need to block these nominees.

Randy Johnson, a senior vice president of labor for the U.S. Chamber of Commerce, called the nominations a "pointless exercise" when they were announced, and added "The past actions by the board have so poisoned the well that it is highly unlikely these nominations will go anywhere," he said.

Having the NLRB out of commission will pose problems for businesses as well as unions, but critics of the board said they'd prefer that to seeing Obama's appointments confirmed by the Senate.

"I think if the board is not functioning for some period of time, that's not a bad thing, given how this board has decided to use their power," said Mark Mix, president of the National Right to Work Foundation.