NLRB UPDATE

On January 4, 2012 President Obama took advantage of a Congressional break to fill the National Labor Relations Board (NLRB) with recess appointments. Specifically, he announced three recess appointments to the NLRB, including two Democrats and one Republican (giving Democrats a majority on the Board). By law, the President may install nominees without Senate approval during Congressional recess, although such appointees only serve through the end of the next Congressional session, unless subsequently confirmed by the Senate. As discussed below, these recess appointments are controversial; Congressional Republicans assert that the Senate is not in recess.

The Three NLRB Appointments
The recess appointees are Sharon Block (D), Terence F. Flynn (R), and Richard Griffin (D). Pursuant to their recess appointments, they may serve on the Board through the end of the next Congressional session. Since session two of the 112th Congress has started, the recess appointments may allow service until December 2013 (the end of session one of the 113th Congress, which will be elected in November 2012).

Sharon Block: President Obama nominated Ms. Block for the NLRB on December 15, 2011, before announcing her recess appointment on January 4, 2012. She has been serving as the Deputy Assistant Secretary for Congressional Affairs at the United States Department of Labor. Ms. Block graduated in 1992 from Georgetown University Law Center where she received the John F. Kennedy Labor Law Award. After two years in private practice and two years at the National Endowment for the Humanities, in 1996 Ms. Block joined the NLRB; she was senior attorney to Chairman Robert Battista from 2003 to 2006. From 2006 and 2009, she was Senior Labor and Employment Counsel for the Senate HELP Committee (working for Senator Edward M. Kennedy).

Terence F. Flynn: President Obama nominated Mr. Flynn for the NLRB in January 2011, but the Senate has not acted on that nomination. He has been serving as Chief Counsel to NLRB Board Member Brian Hayes. Mr. Flynn, who has been with the NLRB since 2003, was previously Chief Counsel to former NLRB Board Member Peter Schaumber. Mr. Flynn started his law career in 1990, after graduating from Washington & Lee University School of Law; he was in private practice from 1990 to 2003.

Richard Griffin: President Obama nominated Mr. Griffin for the NLRB on December 15, 2011, before announcing his recess appointment on January 4, 2012. Currently, he is the General Counsel for International Union of Operating Engineers (IUOE); since 1983 he has been part of the IUOE leadership. Additionally, since 1994 Mr. Griffin also has served on the board of directors for the AFL-CIO Lawyers Coordinating Committee. Mr. Griffin earned a law degree from Northeastern University School of Law in 1981 and served as a Counsel to NLRB Board Members for two years (1981-1983).

Controversy Surrounding These Appointments
Recess appointments are not unusual. For example, President George W. Bush made over 170 recess appointments during his presidency, including 7 of his 9 appointments to the NLRB. Similarly, President Ronald Reagan and President George H.W. Bush each made three recess appointments to the NLRB.

However, Senate Republicans, in an effort to prevent President Obama from making any recess appointments, have kept the Senate in pro forma session since December 16, 2011. Specifically, Republican-run Senate has convened non-legislative sessions every few days in an effort to prevent appointments. (In 2007 and 2008 the Democratic-run Senate did the same thing.) The Obama Administration has determined that these non-legislative pro forma sessions do not prevent recess appointments. Congressional Republicans quickly disagreed, describing the recess appointments as unconstitutional (not made during a recess) and subject to legal challenge.

While Congressional Republicans almost certainly lack standing to challenge the recess appointments, it is possible that an employer affected by a Board action will challenge the NLRB’s jurisdiction to conduct normal Board business. The argument would be that the three recess appointments are constitutionally flawed because they were made while the Senate was in session; as a result the NLRB only has two legitimate members, with the three other seats being effectively vacant. In 2010 the United States Supreme Court held that the NLRB lacks authority to act when three of its five seats are vacant. (See our June 17, 2010 Bullard Alert.)

Bullard Law will continue to monitor events at the NLRB. Please also feel free to contact us with any questions or concerns about any other employment, labor relations, and employee benefits issues.