For two years, the board, which polices the labor laws governing unionized workers and unionization drives, has limped along with just two members, rather than its full complement of five, leaving many cases unresolved because of a 1-to-1 deadlock.

Moreover, a pending Supreme Court case could ultimately vacate 80 of the decisions that the board’s two members, a Democrat and a Republican, have agreed on since its membership fell to two on Jan. 1, 2008. The court will decide whether the board has the power to issue decisions when it has just two members.

President Obama has nominated three lawyers to the board, but Mr. McCain, Republican of Arizona, has delayed confirmation of the three-person package for months by placing a hold on one nominee, Craig Becker, an associate general counsel for the A.F.L.-C.I.O. and the Service Employees International Union. Under Senate rules, a single member’s hold can prevent a full vote unless 60 members vote to overcome the hold.

Mr. McCain contends that Mr. Becker would deny employers their proper role in union elections. In a letter to Senator Tom Harkin, Democrat of Iowa and the Labor Committee’s chairman, Mr. McCain referred to Mr. Becker as “probably the most controversial nominee that I have seen in a long time.”

Mr. Becker’s supporters say he believes employers should have a voice in union elections, but should not be able to force workers to attend anti-union meetings. Mr. Harkin called Mr. Becker “one of the pre-eminent labor law thinkers in the United States,” and said Mr. Becker would approach the job “with an impartial and open mind.”

Wilma B. Liebman, the board’s Democratic chairwoman, said of the stalemate: “This reflects how our political process is paralyzed at the moment. This is not the way government is supposed to function.”

In 2008, Democratic senators blocked confirmation of President George W. Bush’s nominees to the board.

Ms. Liebman said the board’s two-member status had meant years of delay for many aggrieved workers. For instance, workers at a home for the developmentally disabled in Brooklyn voted to unionize in June 2003, but they do not have a union because they are awaiting a decision from the board.

Photo

Peter C. Schaumber and Wilma B. Liebman are the only members of the five-member National Labor Relations Board.Credit
Andrew Councill for The New York Times

“Any time you have cases pending at the board for two or three years,” said James J. Brudney, a labor law professor at Ohio State, “that’s a real hardship for the litigants, particularly for people who were fired illegally and want to get reinstated or receive back pay.”

In May, the United States Court of Appeals for the District of Columbia Circuit disagreed with several other circuit courts and ruled that the decisions of the two-member board could not be enforced. Labor board officials say this could block enforcement of the 80 N.L.R.B. decisions. Indeed, if a litigant dislikes a board ruling, it could rush to appeal to the District of Columbia Circuit, rather than to another circuit, to have the ruling nullified.

The Supreme Court has agreed to resolve the dispute between the circuits.

Marshall B. Babson, whom President Ronald Reagan appointed to the board, is the principal author of an amicus brief by the Chamber of Commerce urging the Supreme Court to rule that decisions by the two-member board cannot be enforced.

But the law also states that the full board can delegate its decision-making authority to three-member panels, of which two members can constitute a quorum. In 2007, shortly before several members stepped down, the board authorized a three-member panel, including Ms. Liebman and Peter C. Schaumber, a Republican and the board’s other member, to issue rulings.

“I do think we have the authority to issue decisions,” Mr. Schaumber said. “Keep in mind, when we agree on decisions, it means two people who ideologically differ have reached a decision about imperatives under the statute.”

Ms. Liebman and Mr. Schaumber say they have handled many cases where agreement was straightforward, but they have decided not to adjudicate some of the larger issues facing the board — like whether a union and employer break the law when they negotiate wages and other terms of a tentative contract even before the workers vote to unionize.

In late December, the Senate returned Mr. Becker’s name and those of five other federal nominees to Mr. Obama after failing to confirm them. White House officials say Mr. Becker will be renominated next week, and officials with the Senate Health, Education, Labor and Pensions Committee say it will seek to vote over the next few weeks to send his nomination to the floor.

Last October, the committee voted 15 to 8 to confirm Mr. Becker, with two Republicans, including Michael B. Enzi of Wyoming, the committee’s senior Republican, voting to confirm him.

Mr. Enzi’s labor policy director, Brian Hayes, is one of the three nominees to the board. The other is Mark Pearce, a union-side lawyer in Buffalo.

“It’s harder to get confirmed than it was 25 years ago,” said Mr. Babson, the board member under Mr. Reagan. “The extremes on either side have become more dug in.”

A version of this article appears in print on January 15, 2010, on Page A16 of the New York edition with the headline: Labor Panel Is Stalled By Dispute On Nominee. Order Reprints|Today's Paper|Subscribe