After a Jan. 25 federal appeals court decision determined that two appointments to the National Labor Relations Board were technically invalid, President Obama is under pressure to nominate board members that can be confirmed by the U.S. Senate.

In Noel Canning v. NLRB, the U.S. Court of Appeals for the District of Columbia Circuit held that the appointments of Sharon Block and Richard Griffin—both Democrats—were unconstitutional because Congress was technically not in recess when the appointments were made. Organized labor, as well as some Democrats, maintain the appointments are valid.

Encouraged by the decision, Sen. Lamar Alexander (R-Tenn.) and other GOP lawmakers are pushing for Block and Griffin to step down immediately. If that were to happen, it would leave the board without the necessary quorum to issue rulings. Block and Griffin currently serve on the board with its chairman, Mark Gaston Pearce, also a Democrat.

Despite the controversy, Obama on Feb. 13 renominated Block and Griffin. Political observers say the two nominees likely will face some challenges. Denise Gold, the Associated General Contractors of America's associate general counsel, says the controversy over the nominees "will likely taint the ability of these nominations to go through the confirmation process smoothly."

Lawmakers could put together a package including Block, Griffin and one or two Republicans, she notes. Sean Thurman, the Associated Builders and Contractors' director of legislative affairs, says some of the current board's decisions represent "a pretty radical shift." Those decisions, as well as pending cases in front of the same panel, could be overturnedif the Supreme Court or other circuit courts agree the nominations were invalid.