President to Appoint Three NLRB Members, Giving Board a Quorum, Democratic Majority

January 5, 2012: President Obama Jan. 4 announced his intent to recess appoint two Democrats and a Republican to serve as members of the National Labor Relations Board, restoring a quorum on the five-seat board that was lost Jan. 3 with the departure of Member Craig Becker.

Obama will appoint as board members Terence F. Flynn (R), Sharon Block (D), and Richard Griffin (D). The president nominated Flynn to the board Jan. 5, 2011, and Block and Griffin Dec. 15, 2011, but the Senate Health, Education, Labor, and Pensions Committee has not acted on any of the nominations.

“The American people deserve to have qualified public servants fighting for them every day—whether it is to enforce new consumer protections or uphold the rights of working Americans,” President Obama said in announcing the recess appointments.

Announcement of the NLRB appointments came several hours after Obama said he will recess appoint Richard Cordray as director of the Consumer Financial Protection Bureau. Obama said in a statement, “The American people deserve to have qualified public servants fighting for them every day—whether it is to enforce new consumer protections or uphold the rights of working Americans.”

NLRB Lost Quorum a Day Earlier

The National Labor Relations Act provides for a five-seat board with final authority over representation cases and unfair labor practice matters under the act.

NLRB functioned until Aug. 27, 2011, with four members, when then-Chairman Wilma B. Liebman's (D) term expired. Member Mark Gaston Pearce (D) was designated chairman when Liebman departed. Pearce was confirmed by the Senate for a term ending Aug. 27, 2013. Member Brian E. Hayes (R) was confirmed for a term that ends Dec. 16, 2012.

Member Craig Becker (D) was sworn in April 5, 2010 (66 DLR AA-1, 4/8/10), to serve a recess appointment. Obama nominated the former union lawyer in July 2009 to serve on the board, but the nomination failed to win Senate approval after a February 2010 cloture motion to end debate on the nomination fell eight votes short of the 60 needed to proceed to a final vote (27 DLR AA-1, 2/11/10).

Becker's recess appointment ended Jan. 3. The former attorney for the Service Employees International Union and the AFL-CIO is now a visiting associate professor of law at Georgetown University, according to an NLRB spokeswoman.

Becker's departure left the board without a quorum needed to reach final decisions in NLRB proceedings. The U.S. Supreme Court held in New Process Steel LP v. NLRB, 130 S. Ct. 2635, 188 LRRM 2833 (2010) (116 DLR AA-1, 6/18/10), that the authority of the five-seat board could not be delegated to a panel with fewer than three members.

GOP Senators Already Voiced Opposition

After Obama nominated Block, a former NLRB and Senate committee attorney who has been serving as the Labor Department's deputy assistant secretary for congressional affairs, and Griffin, another NLRB veteran who was general counsel of the International Union of Operating Engineers, all 47 Senate Republicans signed a letter to the president vowing that they would oppose any recess appointments for his Democratic nominees.

Writing that it would be “especially unfortunate” if Obama were to give recess appointments to Block and Griffin without giving the Senate the opportunity to review their “qualifications and suitability to serve on the board,” the Republicans warned the president not to “provoke a constitutional conflict between the Senate and the White House.”

But Obama went ahead, announcing his intent to make the NLRB appointments in a written statement several hours after the president proclaimed his appointment of Cordray in an Ohio speech.

Appointments Praised by Union Leaders

Union leaders and some Democratic legislators were quick to compliment the president on his action.

“We commend the President for exercising his constitutional authority to ensure that crucially important agencies protecting workers and consumers are not shut down by Republican obstructionism,” AFL-CIO President Richard Trumka said in a Jan. 4 statement that referred to both the CFPB and the NLRB appointments. “Working families and consumers should not pay the price for political ploys that have repeatedly undercut the enforcement of rules against Wall Street abuses and the rights of working people,” Trumka added.

“Republicans left the President with no choice but to recess appoint” the NLRB nominees, United Steelworkers President Leo W. Gerard said Jan. 4. “With these recess appointments, the President has enabled this crucial board to continue functioning,” he said.

IUOE General President James T. Callahan issued a statement complimenting Griffin, who will be leaving his position with the union to sit on the board. Callahan called the objections of Republican senators to the recess appointments “comparable to ejecting the referee if you don't like the score of the game.” Griffin and Block “are distinguished attorneys who will bring an even-handed approach to labor and management issues,” Callahan said.

“Without these recess appointments to the NLRB, working men and women, for the first time since 1935, would have no place to turn for workplace justice,” Communications Workers of America President Larry Cohen said in a statement Jan. 4. “It's shameful that in the increasingly global economy, U.S. workers' rights lag dramatically behind the rest of the world and too many Republican senators are determined to block U.S. workers from exercising even limited rights,” Cohen said.

International Brotherhood of Teamsters General President James Hoffa “applauded President Obama for using his constitutional authority to appoint well-qualified people to government posts that are key to protecting working people from union-busting corporations and financial predators.” The appointment of Flynn, a Republican, “shows the president's determination to rise above petty partisan politics,” Hoffa said.

Democrats Applaud Action, Blast Republicans

Sen. Tom Harkin (D-Iowa), chairman of the Senate HELP Committee, praised the NLRB appointments. “Senate Republicans made clear that they had no intention of giving Democratic nominees fair consideration, despite their wealth of practical experience and deep knowledge of the law, but instead would block appointments to the Board in order to keep it from operating,” Harkin charged.

“By appointing these nominees, President Obama acted responsibly in order to ensure that the workers and businesses across the country who rely on the stable functioning of this important agency would not be caught in the crossfire of the Republicans' misguided ideological battle,” Harkin said.

Rep. George Miller (D-Calif.), ranking member on the House Education and the Workforce Committee, complimented the president in a statement as well, but also blasted Republican legislators for their treatment of the NLRB.

“Republicans have tried to defund the agency, passed legislation to take away any effective sanctions the NLRB can use to enforce laws protecting workers from retaliation, and interfered with ongoing enforcement actions,” Miller said.

McConnell, Enzi Complain Senate Bypassed GOP legislators had their own view of the NLRB appointments.

Senate Minority Leader Mitch McConnell (R-Ky.) said in a Jan. 4 statement: “Congress has a constitutional duty to examine presidential nominees, a responsibility that serves as a check on executive power. But what the President did today sets a terrible precedent that could allow any future President to completely cut the Senate out of the confirmation process, appointing his nominees immediately after sending their names up to Congress.”

“This was surely not what the framers had in mind when they required the President to seek the advice and consent of the Senate in making appointments,” McConnell said.

Sen. Mike Enzi (R-Wyo.), the ranking Republican on the Senate HELP Committee, said Jan. 4 that the president nominated Block and Griffin on Dec. 15, 2011, just before the Senate adjourned for the year on Dec. 16. “To date, neither of the Democrat nominees has filed the required committee application,” Enzi said. “Among other things, the vetting process includes a background check, which addresses whether taxes are paid and if the nominee is facing any pending civil or criminal investigations. This also ensures that there are no conflicts-of-interest before being confirmed for the position.”

“The 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,” Enzi charged. “Just look at the most recent actions by the NLRB,” he concluded.

Graham, House Republicans, Continue NLRB Criticism

Sen. Lindsey Graham (R-S.C.), a frequent critic of the NLRB after its acting general counsel issued a controversial unfair labor practice complaint against Boeing Co. regarding the manufacturer's decision to locate some jetliner assembly work in South Carolina, issued a statement as well.

“Mr. President,” Graham asked in the statement, “hasn't the NLRB already done enough damage?” Charging that “empowering this agency rather than reforming it” would make job creation more difficult, Graham said, “I will continue to do everything in my power to put the brakes on the NLRB as currently constructed.”

House Republicans were critical as well. Education and the Workforce Committee Chairman John Kline (R-Minn.) charged that it was improper for Obama to appoint NLRB members “without allowing the Senate or the public any opportunity to consider their qualifications for this important position.”

Kline asserted that “each and every decision issued by this board will be tainted by the president's actions,” and said he “will continue to pursue aggressive oversight of the NLRB and take any action necessary to protect the rights of workers and employers.”

Rep. Darrell Issa (R-Calif.), chairman of the House Oversight and Government Reform Committee, promised NLRB oversight as well.

“As President Obama gets closer to the election, he seems more and more willing to take highly controversial actions that put the interests of union bosses ahead of job creators and workers,” Issa said Jan. 4. “These appointments underscore the importance of the Oversight Committee's ongoing investigation as the only real check on NLRB's misuse of its authority to assist key political allies of this Administration,” he asserted. Chamber: Obama Could Have Sought ‘Package.'

The U.S. Chamber of Commerce disapproved of the NLRB appointments.

Executive Vice President for Government Affairs Bruce Josten said in a Jan. 4 statement, “The president could have chosen to work with the Senate and stakeholders to see if a package of nominees could be confirmed that would help restore the agency's independence and credibility.”

“Instead,” Josten said, “today's steps will simply further poison the well with regard to labor-management issues pending in front of the Board and on Capitol Hill.”

By Lawrence E Dube for BNA Daily Labor Report.

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