Obama nominates new NLRB members as House threatens to halt board actions

President Obama  nominated three candidates for full terms to the National Labor Relations Board on Tuesday, urging the Senate to confirm the nominees quickly.

The status of the board has been in limbo since a three-judge panel of the D.C. Circuit Court of Appeals ruled unanimously in January that Obama exceeded his constitutional authority by appointing three of its members while lawmakers were on break in January 2012, thus bypassing the usual Senate confirmation process.

The House  is expected to vote on legislation this week that would prohibit the board from issuing decisions until the fate of Obama’s so-called recess appointments is known.

The NLRB last month announced that it would petition the Supreme Court to review the lower court’s ruling. All the board’s decisions since the president made his controversial recess appointments in January 2012 would hinge on the Supreme Court’s decision if the justices decide to hear the case.

If the Supreme Court chooses not to hear the case, then the lower court’s decision would stand, effectively nullifying hundreds of NLRB decisions.

The Preventing Greater Uncertainty in Labor-Management Relations Act, sponsored by Rep. Phil Roe (R-Tenn.), would prohibit the NLRB from taking any actions that require a panel quorum until the Supreme Court issues a decision on the constitutionality of the recess appointments or until all members of the board are confirmed by the Senate.

The NLRB said in January that it planned to move forward with issuing decisions in labor disputes despite the appeals court decision that month.

The board has ruled on hundreds of disputes since Obama made his appointments in 2012.

The president’s latest nominees are Harry I. Johnson and Phillip A. Miscimarra and Mark Gaston Pearce, a current NLRB board member whose term expires in August.

If the Senate confirms those candidates, their placement would mark the first time the board has had five confirmed members since 2003. A quorum of at least three members is required for the panel to issue decisions.

“With these nominations, there will be five nominees to the NLRB, both Republicans and Democrats, awaiting Senate confirmation,” Obama said in a statement. “I urge the Senate to confirm them swiftly so that this bipartisan board can continue its important work on behalf of the American people.”

For more federal news, visit The Federal Eye, The Fed Page and Post Politics.

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E-mail federalworker@washpost.com with news tips and other suggestions.

Josh Hicks covers Maryland politics and government. He previously anchored the Post’s Federal Eye blog, focusing on federal accountability and workforce issues.



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Josh Hicks · April 9, 2013

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