The White House has added to the controversy surrounding the National Labor Relations Board and its recent actions by announcing the President intended to make three recess appointments to the agency. Despite the recent request of 47 Republican Senators to President Barack Obama to refrain from making recess appointments between the Sessions of Congress, it was announced that the President would do just that. On January 4, the White House Press Secretary said the President would nominate Sharon Block, Terence F. Flynn and Richard Griffin to fill the three empty seats on the NLRB. They would join Chairman Mark Gaston Pearce and Member Brian E. Hayes, giving Democrats a 3-2 majority on the Board. With the end of Member Craig Becker’s recess appointment on January 3, the Board now lacks a quorum to make decisions.
Ms. Block, a Democrat, is presently Deputy Assistant Secretary of Labor for Congressional and Inter-Governmental Affairs. Between 2006 and 2009, Ms. Block was Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for the late Senator Edward M. Kennedy (D-Massachusetts), who chaired the Committee. In 2008, Senator Kennedy, and the HELP Committee, refused to move the nominations of three Board members sent up by President George W. Bush, two of whom (a Republican and a Democrat) had just completed terms as agency Chairman and Member, respectively. Challenges to the Board’s attempt to function with only two members led to a Supreme Court decision in 2010 declaring the Board powerless to decide cases in such circumstances.
Mr. Flynn, a Republican, has been serving as Chief Counsel to Member Hayes. Previously, he was Chief Counsel to former Member Peter Schaumber, where he oversaw a variety of legal and policy issues in cases arising under the National Labor Relations Act, according to the NLRB. Before that, he practiced labor and employment law with a major law firm.
Mr. Griffin, also a Democrat, is General Counsel for the International Union of Operating Engineers. He previously held other positions with the IUOE, and in the early 1980’s served as Counsel to Board members. He serves on the Board of Directors for the AFL-CIO Lawyers Coordinating Committee, a position he has held since 1994.
In announcing the intended appointments, the President said, “The American people deserve to have qualified public servants fighting for them every day ... to uphold the rights of working Americans. We can’t wait to act to strengthen the economy and restore security for our middle class and those trying to get in it....”
Senator Michael Enzi (R-Wyoming), Ranking Member on the Senate HELP Committee, said he was “extremely disappointed” to see the President announce the recess appointments and thereby “avoid the Constitutionally mandated Senate confirmation process.” He criticized, as well, the White House’s submission to the Senate of two of the nominees on December 15, 2011, the day before the Senate adjourned, and circumvented the vetting process for these candidates. Referring to the prospective Democratic appointees, Senator Enzi charged that “our struggling economy will soon be faced with two additional bureaucrats who will shackle America’s employers with new onerous regulations. Just look at the most recent actions by the NLRB.”
With the Board at full strength and functional once the recess appointees take office, the agency (absent judicial intervention) would be able to apply its much disputed new rules for “quickie” representation elections and notice posting when they take effect on April 30th. (See our articles, Quickie Election Rule Finalized Before Year End and Judge Needs More Time, NLRB Posting Rule Postponed to April 30, 2012.)
The U.S. Chamber of Commerce also criticized the President’s action. Executive Vice President for Government Affairs Bruce Josten said that by sidestepping the confirmation process, the President’s action “will simply further poison the well with regard to labor-management relations pending in front of the Board and on Capitol Hill.”
Legal challenges to the expected recess appointments reportedly are being considered by members of the Senate and others upset over the President’s action.
The recess appointees could serve until December 2014.
