Chamber to argue case against Obama’s recess appointments at Supreme Court

“The President’s unprecedented abuse of the recess power left the NLRB in a legal limbo, causing major confusion for both employers and employees alike. We continue to support our member, Noel Canning, at the Supreme Court with all the legal firepower needed to defend the company and to help restore the proper constitutional balance,” Donohue said.

Block and Griffin were appointed to the NLRB during a pro forma session of the Senate. In January, the U.S. Court of Appeals for the D.C. Circuit ruled their appointments were unconstitutional.

Last month, the Obama administration asked the Supreme Court to review that ruling.

The White House has argued the Senate is not truly in session during pro forma sessions, since they are staged when senators are away from the chamber for days and even weeks at a time.

Republican lawmakers argue pro forma sessions prevent the Senate from going to recess, so Obama didn’t have the legal power to make the appointments. 

Block and Griffin have been renominated for the labor board with a slate of other nominees. Unions are pushing for that full package to be confirmed by the Senate soon since in August, NLRB Chairman Mark Pearce will step down — leaving the labor board with only two members and no quorum to issue decisions.

On Wednesday, the Senate Health, Education, Labor and Pensions Committee voted to have that package of NLRB nominees be considered onto the Senate floor. Sen. Lamar Alexander (R-Tenn.), the panel’s ranking member, said he will oppose Block and Griffin’s nominations because they were “invalidly appointed.”

The NLRB has been a frequent target of lawsuits and legislation backed by business groups and Republicans. They argue the labor board has favored unions during the Obama administration.

A prior recess appointment of NLRB Craig Becker, who has since left the board, has also been called into question. Earlier this month, a federal courts appeals decision said that appointment was also out of bounds.