The U.S. Senate is expected to consider President Barack Obama’s five nominations to the National Labor Relations Board (NLRB) after its Memorial Day recess. The Senate Health, Education, Labor, and Pensions (HELP) Committee voted on May 22 to approve the nominees, moving the confirmation process to the full Senate.
The nominees up for Senate confirmation are Republicans Harry I. Johnson, III, and Philip A. Miscimarra and Democrats Sharon Block, Richard Griffin, and current NLRB Chairman Mark Gaston Pearce, whose term will end August 27 unless confirmed again by the Senate. Block and Griffin have had seats on the Board since January 2012, when Obama made recess appointments to fill vacant seats.
The status of the normally five-member NLRB was thrown into question on January 25, 2013, when a panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled that Obama’s recess appointments to the Board were invalid.
The president has the authority to make recess appointments when the Senate is in session and can’t confirm nominees through the normal process. When Obama made the recess appointments in January 2012, the Senate was in a holiday recess. It remained in “pro forma” session, however, meaning that it was gaveled in and out of session every few days even though it wasn’t meeting in regular session. Obama made the recess appointments after the Senate failed to act on previous nominees.
The NLRB has asked the U.S. Supreme Court to review the appellate court decision. Without Block and Griffin, the Board has no quorum and can’t act.
Nearly four months after the D.C. Circuit ruling, the 3rd Circuit ruled on May 16, 2013, that Obama’s recess appointment of Democrat Craig Becker to the NLRB in 2010 was invalid. His term expired in January 2012.
The party-line vote of the HELP Committee came in the face of opposition to two of the nominees from the ranking member, Senator Lamar Alexander, a Tennessee Republican. “I oppose the nominations of Sharon Block and Richard Griffin,” Alexander said in a statement released after the committee vote. “I don’t doubt that these two individuals are qualified nominees. The problem is, the president appointed them as so-called recess appointments during a time when the Senate wasn’t in recess.”
Alexander has called for Block and Griffin to step aside and for Obama to nominate two others. “I think we all agree that we’d like to see a functioning Board and a full Board. We don’t have that now,” he said. “We have an invalid Board, according to two federal appellate courts. And two of the members who are unconstitutionally there have participated in 919 cases already, which are subject to being vacated.”
Senator Tom Harkin, an Iowa Democrat and HELP Committee chairman, praised the vote sending Obama’s nominees to the Senate. “Today’s vote is a step in the right direction. Unless the Senate acts to confirm all five nominees to the NLRB, the Board will effectively shut down in August,” he said. “That would be devastating to the workers and businesses that rely on the Board each and every day.”