California Labor &
Employment Law Blog
Jan 10, 2012

Three New NLRB Members Added By Obama as Recess Appointments

Topics: Legal Information, Union-Management Relations

On January 4, President Obama appointed Democrat Sharon Block (currently works at DOL and is former Labor and Employment Counsel for Senate HELP Committee under Senator Edward Kennedy), Republican Terence Flynn (former Crowell and Moring attorney and current counsel to NLRB Board Member Brian Hayes) and Democrat Richard Griffin (General Counsel for IUOE) to the NLRB as recess appointments in order to fill the vacancies recently created by Wilma Liebman's retirement, the expiration of Craig Becker's term as well as an existing Republican vacancy.  This move is very controversial and brings great uncertainty to the situation.


The great men who founded our nation did not anticipate that Congress would remain in session almost all year long.  As a result, they allowed the President to bypass the confirmation process and make interim "recess" appointments during periods when the Senate was unavailable to play their important role of vetting and confirming (or denying confirmation) of presidential appointees.  The theory was that this would avoid having critical posts left vacant for many months while the Senate was in recess.  Presidents have often used this loophole as a way to put nominees that they believe could not pass the hurdle of Senate confirmation into key posts.  Presidents as far back as Washington have used recess appointments.  In fact, William Brennan was appointed to the United States Supreme Court by President Eisenhower through a recess appointment (although he was subsequently confirmed). 

Last year, in the United States Supreme Court case of New Process Steel, the Court held that the NLRB needed at least three members in order to have a quorom and decide cases.  Last week, Obama used recess appointments to ensure that the NLRB maintained a quorom, but at the same time sidestepped Senate Republicans who had deadlocked the nomination process.  Although the recent disputes between Congressional Republicans and the NLRB are more complex to explain than this blog allows, the dispute really boils down to an interpretation of the NLRB's role.  Congressional Republicans view the NLRB's role to be a "union neutral" government agency that is designed to enforce the NLRA and help regulate union-management relations in the United States.  The Democratic members of the Obama NLRB, starting with former chairperson Wilma Liebman, have taken the view that the NLRA was enacted to promote unionization and that therefore the NLRB is an agency that should be looking to promote unionization and is a "pro-union" government body. 

Unprecedented Controversy

Many prior recess appointments have caused controversy.  However, the actions of Obama on January 4 have raised the bar even further, for the following reasons:

1.    There is a real question as to whether the Senate was in recess on January 4.  The Senate was holding "pro forma" sessions during the holiday break in an attempt to prevent Obama from being able to make recess appointments.  Obama ignored this fact and made the recess appointments anyway.  If the Senate was not in recess legally speaking, then these appointments are void.  The legal test that is considered the proper measuring test for this analysis is whether the adjournment of the Senate is of such duration that the Senate cound not receive communications from the President as a body in making appointments.  Many feel the President's unilateral declaration that Congress was in recess is wrong and improper, and that these appointments do not pass constitutional muster.  This question will likely have to be answered by the court system.

2.    Most recess appointees (although certainly not all) were, like Craig Becker, somehow nominated or at least floated by Congress before being given a recess appointment.  The new NLRB appointments were never previously nominated or floated by Congress or Congressional leadership and thus, are completely unvetted. 

3.    The NLRB's actions in (a) filing a complaint against Boeing for moving its Dreamliner plant to South Carolina, a right to work state, (b) engaging in rulemaking procedures to modify the election process to make it easier for unions to get certified, and (c) enacting rules to require additional postings for employers has commenced an unprecedented battle between Republican members of Congress and the NLRB.  Obama making these recess appointments with this battle in the background is the equivalent of dropping 1,000 gallons of gasoline on an already expanding campfire and only escalates the situation.  Certain Congressional Republicans are on a mission to shut down the NLRB.  Certain NLRB Members and many in the union community are determined above all else to win this battle with the Republicans in Congress or, if not, to do whatever in their power to implement a pro-union anti-employer agenda as long as they can, in part to send a message to the Congressional Republicans as part of this battle.

What Does This Mean and Where is This Heading?

These recess appointments are likely to lead to the following consequences:

1.    This is going to be a hot election topic as Republicans will use the pro union NLRB position to try to alienate anti-union and union neutral voters from reelecting Obama, while Democrats will attack Republicans for improperly using political gamesmanship to prevent the President from filling important NLRB posts.

2.    If Congress and the President/NLRB cannot find another solution (unlikely in this election year and with the current environment), there is going to be great uncertainty on the status of the NLRB and its power until the United States Supreme Court rules on whether these appointments were consitutional.  Such a ruling will take many months and probably will not occur until after the election in November.

As a result, it appears as if this is heading to another Court battle similar to the one in New Process Steel.  Sometime in the near future, the existing NLRB is going to issue a decision that has a material adverse impact on an employer or group of employers.  I would expect that after that happens, a lawsuit (or even series of lawsuits) will be filed challeging the decision on the grounds that three of the five NLRB members were appointed in a manner that violates the United States Constitution and that therefore the NLRB did not have a quorom to issue the decision according to New Process Steel, and, as a result, the NLRB decision is void. 

Thus, for 2012, no matter which side of the fence you sit on, you should expect great uncertainty and increased controversy in the regulation of labor-management relations in our country.

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Sacramento Office Managing Partner and Chair of CDF’s Traditional Labor Law Practice Group. Mark has been practicing labor and employment law in California for thirty years. His practice has a special emphasis on the representation of California employers in union-management relations and handling federal and state court litigation and administrative matters triggered by all types of employment-related disputes. He is also adept at providing creative and practical legal advice to help minimize the risks inherent in employing workers in California. He recently named “Sacramento Lawyer of the Year” in Employment Law-Management for 2021 by Best Lawyers®.
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