President Obama’s picks to fill vacancies on the National Labor Relations Board (NLRB) face stiff opposition from some Republican senators who continue to object to controversial “recess appointments” that occurred in 2012.
A federal appeals court on Jan. 25 said Obama exceeded his constitutional authority when he named Sharon Block, Terence F. Flynn and Richard F. Griffin Jr. to the NLRB, bypassing Senate confirmation. The administration plans to appeal that decision to the U.S. Supreme Court.
In the meantime, two more NLRB vacancies will open up later this year. On April 9, Obama announced he would renominate current NLRB Chairman Mark Gaston Pearce, and named two new nominees—-side labor lawyers Philip A. Miscimarra and Harry I. Johnson, III. They would join Block, Flynn and Griffin on the board.
However, Senate Republicans appear unlikely to rubber-stamp the package—at least without a confirmation fight. Several congressional Republicans have called on Block, Flynn and Griffin to resign.
If the Supreme Court upholds the U.S. Court of Appeals for the District of Columbia’s decision, hundreds of rulings in which Block, Flynn and Griffin participated would be thrown out.
However, Pearce announced that until the High Court rules, the NLRB will continue issuing its own rulings. Since the D.C. Circuit is the default court for any NLRB appeal, employers have rushed to file suits there trying to stop the NLRB from issuing more decisions.
The constitutional cloud over NLRB decisions prompted Republicans in the House of Representatives to introduce H.R. 1120, the Preventing Greater Uncertainty in Labor-Management Relations Act, which would require the NLRB to cease all activity until the uncertainty is resolved. The House approved the legislation on April 12.