House Puts a Hold on NLRB

Votes to block rulings handed down until proper confirmation of board members

NLRB board members Mark Gaston Pearce, Sharon Block, and Richard Griffin /
April 12, 2013

The House voted today to block the National Labor Relations Board (NLRB) from ruling on workplace disputes until the Senate has properly confirmed three board members.

"This bill will constrain [executive] power, there is divided power in government and that's the message we sent," Rep. Phil Roe (R., Tenn.) said. "I would have liked the Republicans and Democrats to come together on this because the Democrats won't always have the presidency."

"The [court] has already ruled once that if there's not [three valid board members] they will throw out the rulings and that costs the parties and the government a lot," Roe said. "Labor needs the certainty, management needs certainty and the best way to do that is tell the board stop until we have a review."

A D.C. Appeals Court declared in January President Barack Obama’s recess appointments of union attorneys Sharon Block and Richard Griffin unconstitutional because the Senate was still in pro forma session.

The board and the administration have remained defiant, with NLRB Chairman Mark Gaston Pearce vowing to continue issuing rulings on labor disputes, while the administration pursues an appeal.

The proposal, a block of several pieces of legislation that eked through the House on a party line vote, would prevent the board from issuing any further rulings until the Supreme Court has ruled on the matter or the Senate has properly confirmed at least three board members. Congressional Republicans have slammed the administration for disregarding court rulings.

Roe sponsored the provisions in the bill that would force a newly formed board to review decisions issued during Block and Griffin’s tenure, in order to avoid the shock that could occur if the Supreme Court invalidates the 600 rulings issued by the NLRB during that time.

The court has demonstrated a willingness to do just that: in 2010, the high court dismissed hundreds of NLRB rulings dating back to 2007 because it had only two members at the time.

Labor watchdogs praised the GOP for reining in the labor board and emphasizing the Senate’s role in confirming presidential appointees.

"Allowing the board to continue to issue decisions with this cloud over its authority is inconsistent with the principles of good government and undermines the rule of law," Workforce Fairness Institute Executive Director Fred Wszolek said in a letter to Congress. "It sends a confusing message to employees, employers and unions across the country who are uncertain as to whether the board’s orders have any validity."

Democrats attempted to sidestep the vote by returning the bill to a committee. The motion failed along party lines.

The Obama administration is attempting to push through a package of five board members to avoid Republican opposition to Block and Griffin. He nominated Republicans Harry I. Johnson III and Philip A. Miscimarra, along with re-nominating Pearce, on Tuesday. If confirmed, the three would be able to form the quorum needed to issue rulings.

"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."

Obama has said that he will veto the bill if it passes the Democrat-controlled Senate. Roe said the GOP already scored a victory when Obama announced the nominations.

"He already heard the message; we saw that when he nominated the three to comply with the process," Roe said.