Feb 14, 2012 - 12:26pm

Administration Gets it Backwards on NLRB Nominations


Senior Vice President, Employment Policy Division

2/14/2012

Article II, §2, clause 2 of the Constitution gives the President the power to nominate, and by and with the Advice and Consent of the Senate, appoint government officials.  Typically this means that the President will send a nomination to the Senate after which there will be a confirmation vote.  If the Senate gives its approval, the individual can begin serving in office.

In the case of the National Labor Relations Board (NLRB), the administration seems to have gotten this backwards.  Today it was reported that the President formally nominated three individuals to serve on the NLRB.  Trouble is, these three are already serving on the Board, courtesy of controversial recess appointments made while the Senate, according to its own rules, was not actually in recess (recess appointments are made under Article II, §2, clause 3).  Making matters worse, two of these individuals were appointed to the Board before their paperwork had been sent to the Senate for review, and in fact, their names did not even appear on the White House’s own “nominations” web page.  So much for Advice and Consent.

The fact that these individuals have now been formally nominated will change nothing since they are already serving on the Board and can continue to do so until their temporary terms expire (when Congress adjourns at the end of 2013) or a court finds the recess appointments to be unlawful.  Given how the NLRB has conducted itself over the past two years (think Boeing, ambush elections, biased and illogical case decisions) and the way these appointments were made, it is highly unlikely the three nominees will ever be confirmed for full terms.

The unfortunate result is of this whole process is that the Board is staffed largely with temporary recess appointments that have not been approved by the Senate, the legality of most NLRB actions is now suspect, and both workers and employers face a cloud of uncertainty in any Board proceeding.  Surely this is not what was envisioned when Article II, §2, clause 2 was written.

 

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About the Author

Glenn Spencer Headshot
Senior Vice President, Employment Policy Division

Glenn Spencer is senior vice president of the Employment Policy division at the U.S. Chamber of Commerce.