Obama Makes Three Recess Appointments to the NLRB

On January 4, 2012, President Obama announced his intention to make three recess appointments to the National Labor Relations Board. According to the White House press release, the President will seat Sharon Block (D), Richard Griffin (D), and Terence Flynn (R) to the Board via recess appointment. Anticipating that in 2012 the five-member Board would be left with just two sitting members – Chairman Mark Gaston Pearce (D) and Brian Hayes (R) – Obama nominated Block and Griffin to serve on the Board last month. The third recess appointee, Terence Flynn, was named as an NLRB candidate last year, but the Senate did not act on any of these nominations in 2011.

As established by the Supreme Court in the 2010 opinion New Process Steel, the Board requires at least three sitting members to exercise its full authority. When former member Craig Becker’s recess appointment expired on January 3, 2012, the Board ceased to have the ability to exercise that authority. Some have contended that the Senate has been holding pro forma sessions – in which it convenes every few days but carries out no substantive work – in order to prevent the President from making new Board appointments. The President contends, however, that he has the authority to make recess appointments when the Senate is “effectively” in recess.

The move to seat new NLRB members in this fashion will likely be contested. According to the United States Chamber of Commerce, which immediately issued a statement on the appointments, the President’s move “is highly irregular and virtually unprecedented. While the Constitution vests the president with the authority to make recess appointments, the conventional wisdom has been that it requires a recess of more than 3 days in order for the president to exercise this authority.” Senator Mike Enzi (R-WY), Ranking Member on the Senate Health, Education, Labor and Pensions (HELP) also immediately denounced the recess appointments in a similar statement in which he wrote “[t]he president has ignored the Senate’s confirmation and vetting process, ensuring that our struggling economy will soon be faced with two additional bureaucrats who will shackle America’s employers with new onerous regulations.”

As for the new appointees, Flynn currently works as Chief Counsel to the current Board member Brian Hayes. Block serves as the Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. Block’s other positions have included Senior Labor and Employment Counsel for the Senate Committee on Health, Education, Labor and Pensions (HELP), where she worked for the late Senator Edward M. Kennedy, and senior attorney to former NLRB Chairman Robert Battista.

Griffin is a long-term attorney for the International Union of Operating Engineers (IUOE), where he currently serves as the union’s general counsel. Since 1994 he has also served on the board of directors for the AFL-CIO Lawyers Coordinating Committee. From 1981 to 1983, Griffin worked as a counsel to NLRB Board Members.

For a further discussion of these recess appointments, see Littler’s ASAP: President Bypasses Senate to Make Recess Appointments to the NLRB by Ilyse Schuman and Jennifer Mora.