President Obama Makes Three Recess Appointments to the National Labor Relations Board

January 9, 2012

In a controversial move, on Jan. 4, 2012, President Obama announced his intention to make three recess appointments to fill vacant positions on the National Labor Relations Board. The Board is the federal agency charged with administering the National Labor Relations Act (NLRA).

The announcement stated that the President would appoint Democrats Sharon Block and Richard Griffin as well as Republican Terence F. Flynn. The President previously nominated Block and Griffin in mid-December. 2011, and Flynn in January 2011. The Senate never acted to approve any of these nominations.

Ms. Block is the Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. Her prior positions include working for the late Senator Edward M. Kennedy as Senior Labor Counsel for the Senate HELP committee, senior attorney to former Board Chairman Robert Battista, and as an attorney in the appellate court branch of the Board.

Mr. Griffin, a career union attorney, currently is General Counsel for the International Union of Operating Engineers. He also serves on the Board of Directors for the AFL-CIO steering committee, a position he has held since 1994.

Mr. Flynn currently serves as Chief Counsel to Board member Brian Hayes, the lone Republican Board member. Mr. Flynn also served in the same position under prior Board member Peter Schaumber. Prior to that, he was in private practice.

The announcement of these appointments follows the departure of Board member Craig Becker, whose recess appointment ended on Jan. 3, 2012. Member Becker’s departure left the Board with only two members instead of its full complement of five members. As a result, it did not have a quorum (i.e., at least three members) and would not be able to issue decisions or take other actions.

The President’s recess appointments are controversial for several reasons. The President normally appoints Board members with the advice and consent of the Senate. The President, however, may make recess appointments when the Senate is in recess. In this case, the President has elected to make appointments even though Congress technically has remained in session. This differs from the practice of recent preceding Presidential administrations, including the Bush Administration, which did not take such action when the Democratic Senate kept in technical session to prevent recess appointments, including those to the Board.

In addition, absent subsequent approval of the Senate, a recess appointment expires at the end of the next Senate session, which is generally at the end of a calendar year. Because the President waited until the 2012 Congress had begun to make the appointments, these appointments may last into 2013.

Commentators expect various legal challenges to President Obama’s ability to make the appointments under these circumstances. Absent those challenges, the Board will have a full complement of five members. Consistent with tradition, and at least in theory, three members will be from the party of the President (Democrats) while the other two will be from the party out of power (Republicans).

Assuming the new recess appointments are upheld, this new Board is expected to continue the pro-union policies and decisions of the previous Board. Among other things, the new Board majority likely will continue the push toward significantly reducing the length of union elections (to as little as seven days), requiring that employers post a “notice of rights,” and many other highly controversial changes to long-established Board rules, policies and precedent. Some commentators have noted that changes proposed by the prior Board would go a long way toward administratively enacting significant aspects of the Employee Free Choice Act, which was legislatively rejected.

As a result, employers and their employees should be prepared for significant changes to the labor environment that favor unions at the expense of employee rights and free choice. To limit such damage, employers should be prepared to act proactively to ensure their managers and other employees understand the NLRA and how it works. Employers also should pay careful attention to developments in this area, as unprecedented changes may occur quickly.

McGuireWoods will keep you updated as developments occur. In the meantime, please contact the authors or other members of the McGuireWoods Labor & Employment  team with any questions or concerns you may have regarding how this development might affect you or your employees and your response to it.