On May 16, President Barack Obama’s nominees to the National Labor Relations Board (NLRB) went before the Senate Health, Education, Labor and Pensions Committee, and the two nominees who were selected as recess appointees in 2012 failed to impress the committee’s ranking member, Senator Lamar Alexander.
Alexander (R-Tennessee) said he would oppose the nominations of Democrats Sharon Block and Richard Griffin because “they continued to decide cases after the federal appellate court unanimously decided they were unconstitutionally appointed.”
Block, Griffin, and Republican Terence Flynn were sworn in as Board members in January 2012 after recess appointments by Obama. The Senate hadn’t voted on previous nominations, so Obama used recess appointees to fill the Board’s vacancies while the Senate was in recess. However, the Senate remained in pro forma session, meaning it was gaveled in and out of session every few days.
On January 25, 2013, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the recess appointments were unconstitutional. The Obama administration has appealed that decision to the U.S. Supreme Court.
With the NLRB’s status uncertain, Obama nominated Block and Griffin to the Board on February 13, 2013. (Flynn resigned in July 2012 after reports that he had inappropriately shared nonpublic Board information with a former NLRB member.) On April 9, Obama nominated Republicans Harry I. Johnson III and Philip A. Miscimarra, along with Democrat Mark Gaston Pearce, the current NLRB chairman. Pearce’s term is set to expire on August 27. If all the nominees are confirmed, the Board will have its full complement of five members.
Alexander criticized Block and Griffin for remaining on the NLRB after the D.C. Circuit’s ruling. “Recess appointment have to be made during recesses, or we have a situation where the president can just ignore Article One [of the U.S. Constitution], the principal curb on the power of the executive,” he said.
Alexander said the presence of Block and Griffin “creates [an] enormous opportunity for confusion and waste” and that Obama should find other nominees. “I agree we want certainty, and the best way to have certainty is to have five confirmed members of the Board. The president could nominate two equally qualified members who did not sit on the NLRB when the court had decided that they were unconstitutionally there,” he said.
In April, Alexander introduced legislation that would prohibit the NLRB from taking any action that requires a quorum until membership constituting a quorum has been confirmed by the Senate, the Supreme Court issues a decision on the constitutionality of the 2012 recess appointments, or the first session of the 113th Congress is adjourned.