Today, President Obama announced three recess appointments to the National Labor Relations Board in an effort to ensure that the Board continues to operate with a full quorum throughout 2012. The President’s action has been criticized, however, and is certain to invite legal challenge as the appointments arguably violate the Constitution’s Advice and Consent mandate. The Republican caucus in the Senate has recently sent a clear message that it did not intend to confirm any of the President’s nominees and took measures to prevent these very types of actions. The three new Board members appointed today are Sharon Block (D), Richard Griffin (D), and Terence Flynn (R).
On December 27, 2011, the recess appointment of Craig Becker expired leaving only two members on the Board, Chairman Mark Pearce, Democrat, and Member Bryan Hayes, Republican. Based on the Supreme Court’s decision in New Process Steel v. NLRB, __ U.S. __, 130 S.Ct. 2635, 177 L.Ed.2d 162 (2010), the Board must consist of at least three members to a constitute a quorum. A quorum is necessary for the Board to issue adjudicatory decisions or approve regulatory changes through rulemaking. The two-member Board consisting of only Pearce and Hayes did not meet this minimum requirement.
Frustrated with recent activist actions taken by the NLRB, including anunpopular and baseless complaint against The Boeing Company and expedited changes to the Board’s long-standing election procedure, Republicans had threatened to filibuster President Obama’s nominees to the Board. It had also taken measures to prevent recess appointments by keeping the Senate in pro forma session over the holiday break. Traditionally, the President has not made recess appointments unless the Senate recesses for 10 days or more. The pro forma session ensured that no recess by the Senate would last more than two days. Much to the consternation of the Senate, however, President Obama discarded that tradition and made the recess appointments in spite of the Senate’s reliance on historically accepted tactics to prevent them.
The NLRB provided the following background information about each appointee:
Sharon Block – Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. Between 2006 and 2009, Ms. Block was Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for Senator Edward M. Kennedy. Ms. Block previously served at the National Labor Relations Board as senior attorney to Chairman Robert Battista from 2003 to 2006 and as an attorney in the appellate court branch from 1996 to 2003. From 1994 to 1996, she was Assistant General Counsel at the National Endowment for the Humanities, and from 1991 to 1993, she was an associate at Steptoe & Johnson. She received a B.A. in History from Columbia University and a J.D. from Georgetown University Law Center where she received the John F. Kennedy Labor Law Award.
Richard Griffin – General Counsel for International Union of Operating Engineers (IUOE). He also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee, a position he has held since 1994. Since 1983, he has held a number of leadership positions with IUOE from Assistant House Counsel to Associate General Counsel. From 1985 to 1994, Mr. Griffin served as a member of the board of trustees of the IUOE’s central pension fund. From 1981 to 1983, he served as a Counsel to NLRB Board Members. Mr. Griffin holds a B.A. from Yale University and a J.D. from Northeastern University School of Law.
Terence F. Flynn, currently detailed to serve as Chief Counsel to NLRB Board Member Brian Hayes. Mr. Flynn was previously Chief Counsel to former NLRB Board Member Peter Schaumber, where he oversaw a variety of legal and policy issues in cases arising under the National Labor Relations Act. From 1996 to 2003, Mr. Flynn was Counsel in the Labor and Employment Group of Crowell & Moring, LLP, where he handled a wide range of labor and employment issues, including collective bargaining negotiations, litigation of unfair labor practices, defense of ERISA claims, and wage and hour disputes, among other matters. From 1992 to 1995, he was a litigation associate at the law firm David, Hager, Kuney & Krupin, where he counseled clients on federal, state, and local employment and wage hour laws, NLRB arbitrations, and other labor relations disputes. Mr. Flynn started his law career at the firm Reid & Priest, handling labor and immigration matters from 1990 to 1992. He holds a B.A. degree from University of Maryland, College Park and a J.D. from Washington & Lee University School of Law.