- The Washington Times - Wednesday, February 13, 2013

President Obama on Wednesday renominated two Democratic members of the National Labor Relations Board whose recess appointments were ruled unconstitutional — the same day House Republicans moved to temporarily shut down the agency.

Mr. Obama asked the Senate to approve Sharon Block, a former Democratic Labor Department official, and Richard Griffin, a Democratic union lawyer, to serve on the NLRB, just weeks after a federal court invalided their recess appointments from a year earlier.

The U.S. Court of Appeals ruling has called into question the agency’s rulings during Ms. Block’s and Mr. Griffin’s time on the board, and House Republicans warned that all its decisions are subject to reversal.

The presidentially appointed five-member board oversees the enforcement of labor laws across the country.

Following a hearing of the House Education and the Workforce subcommittee on health, employment, labor and pensions, Chairman David P. Roe, Tennessee Republican, advised businesses not to follow the NLRB rulings until the Supreme Court sorts out the legal dilemma.

“I wouldn’t do anything,” he said. “I’d wait for the court to rule.”

But Elizabeth Reynolds, a member of Allison, Slutsky & Kennedy, a Chicago-based law firm, who testified at the hearing, said it’s ridiculous to expect the NLRB to stop issuing decisions.

“That is like suggesting that the police should stop enforcing the law, because one court has held it unconstitutional,” she said.

Rep. Robert E. Andrews, New Jersey Democrat, accused House Republicans of “paralyzing” the NLRB over the past year.

“That’s acting on bad faith,” he said.

Mr. Griffin’s nomination became even more problematic after he was recently named as a defendant in a racketeering lawsuit over charges that the union where he once served as general counsel terminated employees who tries to expose a major embezzlement effort of union funds.

The controversy over the appointees on the board arose in January 2012, after President Obama made three recess appointments to the NLRB while the Senate was, technically, still in session.

Congressional rules state that each chamber must give the other permission before it can leave for more than three days. But the Republican-controlled House never gave the Senate permission to take its traditional Christmas vacation, because it didn’t want the president to make recess appointments during that time.

Senate Democrats ignored this and left. But some Senate Republicans stuck around, so they could hold pro-forma sessions in an effort to block the president.

During that time, Senate Republicans took no more than three days off between pro-forma sessions. This is the normal procedure while the Senate is in session. Senators don’t work 24/7, of course.

“What’s your definition of a recess?” Rep. Trey Gowdy, South Carolina Republican, asked during the hearing. “If they were to take a nap, which happens from time to time in the U.S. Senate, would that be a recess?”

Roger King, a lawyer who testified on behalf of the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace, suggested this could lead to future presidents making recess appointments during the Senate’s “lunch break” or “over the weekend.”

The Obama administration argued that the Senate was not actually in session, because most senators were gone, while the few Republicans who stayed were not doing any legislative work.

But Republicans say history is on their side. During the Bush administration, then-Senate Minority Leader Harry Reid did the same thing, holding a pro-forma session to prevent the president from making any recess appointments.

The only difference? President Bush, though frustrated, respected the Senate’s pro-forma session, and did not make any recess appointments.

Democrats acknowledge they pioneered the end run of the White House, but argued now was the time to put it to a stop.

“I agree that it was our party that really started this phony three-day recess stuff, but that doesn’t make it right,” Mr. Andrews conceded.

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