On Tuesday, April 9, 2013, President Barack Obama announced plans to nominate three candidates to full terms on the National Labor Relations Board (NLRB). President Obama urged swift Senate approval for the nominees, Democract Mark Pearce, and Republicans Harry I. Johnson and Philip A. Miscimarra. Obama also renewed his request for confirmation of the nominees he put forth in February, Democrats Sharon Block and Richard Griffin. This would fill all five seats on the board.
Senate approval of these nominees would also answer questions of legitimacy that resulted from a federal appeals court holding that Obama’s NLRB recess appointments were unconstitutional. As discussed in the Section’s 9th Annual Administrative Law and Regulatory Practice Institute last week, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled in January that recess appointments are only constitutional when the vacancy occurs during a recess and limits the definition of “recess” to official breaks between formal year-long Congressional sessions. This decision raised questions about the broad range of decisions the NLRB issued in the past year, including enforcing collective-bargaining agreements, ruling on the rights of workers to use social media, and applying anti-retaliation provisions. The NLRB is set to file its writ of certiorari, asking the Supreme Court to overturn the D.C. Circuit, by April 25.
Obama’s announcement this week also coincides with a Republican-drafted bill in the House, which would effectively prevent the NLRB from taking any action until the Supreme Court rules on the issue, or until the NLRB five-seat panel has a quorum of non-contested members. Currently, the NLRB can issue decisions when it has at least three sitting members.
With a bill pending in the House, appointments pending in the Senate, and a question for review before the Supreme Court, the NLRB remains in limbo until one of the federal branches of government makes the next move.
Lauren Khouri is a third-year law student at American University Washington College of Law.
This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.