House Education and the Workforce Committee Chairman John Kline (R-MN) and Health, Employment, Labor, and Pensions Subcommittee Chairman Phil Roe (R-TN) have asked the National Labor Relations Board (NLRB) and the White House Counsel to remit documents and information concerning recent recess appointments to the NLRB. In particular, the committee leaders seek information regarding the qualifications of those appointed, as well as the president's legal authority to grant recess appointments when the Senate is in pro forma session.
Kline and Roe issued the following statement:
"The policies and decisions of the NLRB impact virtually every private workplace across the country. Not one nominee received a public hearing in the Democratic-controlled Senate, let alone a vote. Senate Democrats failed to do their job, and if the president continues to use their failure as an excuse to abuse his power then House Republicans will take action. The American people deserve answers. The documents and information requested by the committee will help inform Congress and the public whether these individuals are qualified to serve on the board."
On January 4, 2012, President Obama announced three recess appointments to the National Labor Relations Board. Terrence Flynn, a Republican appointee to the board, was first nominated in January, 2011. However, over the last year Democrat leaders in the Senate never convened a public hearing or scheduled a vote on the nomination. Sharon Block and Richard Griffin, two Democratic appointees to the board, were first nominated on December 15, 2011. Again, no public hearings or votes were held on the nominees.
In fact, neither Block nor Griffin participated in a Senate vetting process required of past NLRB nominees, including completing an application and undergoing a background check to ensure no legal issues or conflicts of interests exists that may call into question their ability to serve on the board.
Additionally, the president's use of the recess appointment power when the Senate is not in recess has raised a number of constitutional concerns. Since December 16, the Senate has held numerous pro forma sessions and has even conducted legislative business. Exercising this authority while the Senate is in session will likely generate legal challenges to future decisions of the board. As Kline and Roe noted in their letter to White House Counsel Kathryn Ruemmler, "The American people must have confidence in the legitimacy of the actions of the NLRB. Unfortunately, recent actions taken by the President will undermine confidence in the Board to the detriment of workers and employers."