On January 4, President Obama announced his intent to appoint three new members to the National Labor Relations Board ("NLRB" or "Board"). The recess appointment of Sharon Block (D), Richard Griffin (D) and Terence F. Flynn (R) will bring the five-seat Board to its full complement after it lost quorum with the departure of Member Craig Becker at the end of 2011.
Sharon Block is currently the Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor and was formerly Senior Labor and Employment Counsel for the Senate HELP Committee and Senior Attorney to former NLRB Chairman Robert Battista. Richard Griffin will leave his post as General Counsel for the International Union of Operating Engineers to join the Board. Terence F. Flynn, the lone Republican appointee, currently serves as Chief Counsel to NLRB Member Brian Hayes, and was previously Chief Counsel to former NLRB Member Peter Schaumber.
Though the President's recess appointments create a fully staffed Board, they do little to alleviate the uncertainty accompanying a loss of quorum because the legitimacy of these appointments is questionable. The Constitution requires that the Senate actually be in recess before the president invokes the power to make recess appointments. However, what actually constitutes a "recess" will likely be determined by future litigation. In the past 30 years, for example, no President has used the recess appointment power in a recess of less than ten days. Although the current Senate has held proceedings every three days through the holiday break in an effort to prevent recess appointments such as these, the pro-forma proceedings have consisted of nothing more than the formality of "gaveling in" and "gaveling out."
Whether the President's recess appointments are legitimate will ultimately be decided as Board cases are appealed and litigated through the federal court system. Until then, the Board will act with five members at its own peril, and parties before the Board will face uncertainty as to the validity of Board proceedings and decisions.
In 2010, the Supreme Court held in New Process Steel, LP v. NLRB, 130 S. Ct. 2635 (2010) that the power of the five-seat Board could not be delegated to a panel of fewer than three members. The Court's decision invalidated hundreds of Board decisions that were issued while operating with only two members. If the President's recess appointments are not legally sound, the NLRB will once again be acting unlawfully with only two members. As a result, numerous decisions in individual cases could be invalidated and the Board will inevitably face heightened questioning, criticism and charges of politicization.
If the President's recess appointments are not legitimate, the Board will be without power to act on, among other things, its new notice-posting rule. Prior to Member Becker's departure, the Board announced on December 23, 2011 that it had agreed to postpone the implementation of the rule at the request of a federal court in Washington, D.C., hearing a legal challenge to the rule. The rule will not go into effect until April 30, 2012. The rule has been challenged in lawsuits filed in the U.S. District Court for the District of Columbia (Nat'l Ass'n of Mfrs. v. NLRB, D.D.C., No. 11-cv-1629) and the U.S. District Court for the District of South Carolina (Chamber of Commerce v. NLRB, D.S.C., No. 11-cv-2516). Judge Jackson, presiding over the District of Columbia proceeding, informed the Board's lawyers that the legal issues involved in the challenge to the rule deserved more time than the January 31 effective date provided. The Board hopes that postponing the implementation of the rule once again will facilitate the resolution of the legal challenges that have been leveled at the rule.
If you have any questions about President Obama's recess appointments or the postponement of the NLRB's notice posting rule, please contact Mike Asensio (firstname.lastname@example.org or 614.462.4740) or any member of Baker Hostetler's Labor Relations Team.
Authorship Credit: M.J. ("Mike") Asensio
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