National Labor Relations Board: New Protocols Aim to Prevent Errors When Swearing in Board Members

What GAO Found

The National Labor Relations Board (NLRB) failed to ensure that a Senate-confirmed Board nominee's presidential commission had been signed prior to administering the oath of office, but the agency has since added internal controls to avoid future mistakes. Although NLRB's protocols in place at the time instructed an official to ensure that the commission was signed as soon as possible after Senate confirmation before administering the oath of office, NLRB did not follow those protocols. Based on a review of that error, NLRB revised its protocols to include several new steps to ensure proper administration of the oath of office. For example, NLRB established a committee for handling presidential appointments consisting of six senior officials to ensure that the commission is signed prior to administering the oath of office.

Why GAO Did This Study

NLRB, a federal agency in the executive branch created in part to eliminate unfair labor practices, is headed by a five-member Board and General Counsel. Each Board member is to be appointed in accordance with the Appointments Clause of the U.S. Constitution, which means that Board members are to be nominated by the President and confirmed by the Senate. After Senate confirmation, the President can then appoint the confirmed nominee to the position. This appointment is typically memorialized by a signed presidential commission. On July 28, 2021, a nominee to the Board was confirmed by the Senate. On August 28, 2021, NLRB administered the oath of office to the confirmed nominee, believing that he had received a signed presidential commission appointing him to the position. However, on September 22, 2021, NLRB Chairman learned that the confirmed nominee had not previously received his signed presidential commission and, therefore, had not been appointed to the position. On the same day, the confirmed nominee received his signed presidential commission effectuating his appointment to the position, and the Chairman re-administered the oath of office to him.

GAO was asked to examine what led to NLRB administering the oath of office prior to receiving a signed presidential commission, and any procedures NLRB has implemented to prevent a similar error from occurring in the future.

This report examines why an NLRB member was sworn in prior to receiving a signed presidential commission and the actions the NLRB has taken to ensure that such an error will not happen in the future.

To address our objective, we interviewed NLRB officials and collected documentary evidence regarding: (1) NLRB's protocols for swearing in members as of August 2021; (2) the steps that resulted in the nominee being sworn in prior to receiving a signed presidential commission; and (3) actions NLRB has taken to prevent this error from occurring again, such as revising its protocols to swear in new members. Additionally, we reviewed relevant federal laws, regulations, and guidance, along with prior GAO work.

In a separate product, we examined the legal implications of the member's service prior to his presidential appointment.

For more information, contact Tom Costa at (202) 512-7215 or costat@gao.gov.