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Recess Appointments to NLRB Stir Controversy
February 27, 2012

President Obama announced on January 4, 2012, that he would use his power of recess appointment to fill three vacancies on the National Labor Relations Board (NLRB). All three appointees had been formally nominated by the President for their positions but the Senate Health, Education, Labor, and Pensions Committee had not yet acted on any of the nominations. The new members are Sharon Block (D), Terence F. Flynn (R), and Richard Griffin (D). The appointees join current NLRB Chairman Mark Gaston Pearce (D) and Member Brian Hayes (R) to bring the Board to its full 5-member strength for the first time since late August of 2010. Pearce and Hayes were both confirmed by the Senate to their positions on June 22, 2010.

The NLRB is an independent federal agency responsible for enforcing workers’ rights under the National Labor Relations Act, which includes the right to organize, to decide whether they wish to have a union collectively bargain for them, to engage in other concerted activities, and to prevent and remedy unfair labor practices committed by employers and labor unions. The Board is supposed to have five members, each appointed by the President, subject to the consent of the Senate, and serving staggered five year terms. As the U. S. Supreme Court recently ruled in the case of New Process Steel LP v. NLRB, 130 S.Ct. 2635 (2010), the Board has no authority to issue decisions and orders without at least three (3) members. Consequently, following the expiration of the term of recess appointee Craig Becker on January 3, the Board would not have had a lawful quorum to conduct its business.

The recess appointments were made over the objections of Republican lawmakers. All forty-seven GOP Senators signed a letter to the President on December 19, 2011, asking that he refrain from making recess NLRB appointments. Following the President’s announcement, Senate Minority Leader Mitch McConnell accused the President of usurping the Senate’s oversight powers, pointing out that new members Block and Griffin had only been nominated two days before lawmakers left town for the holidays in December and before a single hearing or debate could be held.

The recess appointments are being challenged on a number of fronts. Legislation was introduced in the House of Representatives to limit the powers of the NLRB to operate when it is headed by appointees who were recess-appointed. Additionally, a number of organizations, including the Coalition for a Democratic Workplace, the National Right to Work Committee and the National Federation of Independent Business have filed lawsuits challenging the constitutionality of the appointments. Their arguments center on the meaning of the recess appointment power contained in the Constitution with opponents contending that there was no “recess” at the time of the appointments. If the appointments are ultimately set aside, then actions taken by the Board in the interim will likely be invalidated under the New Process ruling since there will only have been two lawfully-seated Members.

Under Article II of the U. S. Constitution, the authority to make appointments to high-level federal policy-making positions is shared by the President and the Senate. The President nominates and the Senate must confirm that nomination before the appointment is effective. However, the Constitution provides for an important exception to the normal process. When the Senate is in recess, the President may make a temporary appointment to fill vacancies, called a recess appointment, without Senate approval. These temporary appointments last until the end of the Senate’s next session. Recess appointees have the same legal authority and the same rate of pay as Confirmed Appointees. See Recess Appointments: Frequently Asked Questions, Henry B. Hogue, Congressional Research Service (January 9, 2012).

Recess appointee Richard Griffin, a Democrat, is the former General Counsel to the International Union of Operating Engineers and a member of the AFL-CIO Lawyers Coordinating Committee. At the time of her appointment, Democratic appointee Sharon Block was Deputy Assistant for Congressional Affairs at the U.S. Department of Labor. Her work history included working as an attorney for the NLRB and as Labor and Employment Counsel for the Senate Health, Education, Labor, and Pensions Committee, where she worked for now-deceased Sen. Edward M. Kennedy (D-Mass.). Republican Terence F. Flynn was Chief Counsel to current NLRB Member Hayes and former Member Peter Schaumber. Flynn was in private practice before joining the Board where he specialized in labor and employment matters. See NLRB news release.

In other recent NLRB news, the Board has extended its deadline for posting a notice advising employees of their rights under the National Labor Relations Act. The NLRB’s new deadline is April 30, 2012. However, the right of the Board to require this posting is being challenged in the Courts. Spilman Thomas & Battle’s L&E group will keep you apprised of whether this deadline is again postponed, or if the requirement is invalidated altogether.

Labor & Employment Law Peter R. Rich