• President Obama¿s Controversial Recess Appointments to the NLRB Foreshadow a Lively Year for Labor Law
  • January 19, 2012 | Authors: Michael D. Kaufman; Evan H. Pontz; Jimmy F. Robinson; D. Eugene "Gene" Webb
  • Law Firms: Troutman Sanders LLP - Atlanta Office ; Troutman Sanders LLP - Richmond Office
  • Starting the year off with a big bang, on Wednesday, January 4, 2012, President Barack Obama ignored the furious reaction of Republicans to his recess appointment of Richard Cordray as the new director of the Consumer Financial Protection Bureau and decisively made three more controversial recess appointments, this time to the National Labor Relations Board (NLRB).

    The Appointees

    The three recess appointees are Sharon Block and Richard Griffin, nominated by the President to serve on the board last month, and Terence Flynn, who was nominated last year.

    1. Democrat Sharon Block was most recently a Deputy Assistant Secretary of Labor for Congressional and Inter-Government Affairs in the U.S. Labor Department. Ms. Block also worked as a Senior Labor and Employment Counsel for the Senate HELP Committee with the late Senator Edward M. Kennedy from 2006 through 2009.

    2. Democrat Richard Griffin is the former General Counsel for the International Union of Operating Engineers (IUOE). Mr. Griffin previously held other positions with the IUOE, and in the early 1980’s served as Counsel to NLRB Board members. He also served on the Board of Directors for the AFL-CIO Lawyers Coordinating Committee, a position he held from 1994 until his recess appointment.

    3. Republican Terence F. Flynn, who until his recess appointment was the chief counsel to NLRB Board Member Brian Hayes, a fellow Republican. Previously, Mr. Flynn was Chief Counsel to former NLRB Member Peter Schaumber and before that was in private practice, focusing on labor and employment law.

    The Controversy

    President Obama justified these recess appointments in comments by stating, “The American people deserve to have qualified public servants fighting for them every day — whether it is to enforce new consumer protections or 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, and that’s why I am proud to appoint these fine individuals to get to work for the American people.”

    It should come as no surprise that union leaders are ecstatic and have applauded the President for making these appointments. However, Congressional Republicans and pro-business leaders are outraged. They have vowed to find a way to have the President’s actions declared unconstitutional, arguing that the only time the President has the authority to make recess appointments is when the Senate is in recess. They contend that the Senate was not in recess when these appointments were made and therefore the appointments are neither legitimate nor legal.

    With the January 3, 2012 expiration of Democrat Craig Becker’s controversial recess appointment, President Obama’s union allies emphatically urged him to take action to ensure the NLRB would continue to function. In 2010, challenges to the Board’s attempts to function with only two members resulted in a Supreme Court decision in the case of New Process Steel v. NLRB which held that the National Labor Relations Act (NLRA) requires that the NLRB must have at least three active members in order to exercise its full authority and without those three members, the Board was powerless to decide cases.Without these three new recess appointments, the NLRB would have been left with only two members - Democratic Chairman Mark Gaston Pearce and Republican Brian E. Hayes. Because Steel invalidated hundreds of Board decisions that were issued when the Board operated with only two members, the pressure was on the President to make these appointments.

    What’s Next

    These recess appointees provide the Democrats a 3 to 2 majority on the Board and brings it back to its full five-member strength. The Board had been operating with only three members until now, and would have been down to two when Becker’s term expired. Now fully functional for the first time since August 2010, it is expected that President Obama’s pro-union NLRB will move forward with applying two controversial new rules: “quickie representation elections” designed to speed up union elections; and its new notice posting rule, requiring employers to post notices informing workers of their organizing rights. Though ensnarled in lawsuits over these issues, the NLRB has scheduled both rules to take effect on April 30, 2012.

    Additionally there are several cases before the NLRB that could result in major changes for employers, including cases on whether taxi drivers are independent contractors or employees who can be organized, and whether graduate student employees can organize into a union. Likewise, the Board continues to tackle cases involving whether disciplining employees for posting work-related issues and concerns on social media sites is permissible or a violation of the NLRA. The recess appointments give the Board a platform from which it can issue important decisions on these and other topics.