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On Wednesday, January 4, 2012, President Obama named Sharon Block, Terence Flynn, and Richard Griffin as recess appointments to the NLRB. Apparently, President Obama anticipated that with the recent expiration of one of the three sitting NLRB member's terms, the Board would be reduced to two members-one member fewer than is necessary to constitute a quorum which can render binding decisions and adopt new regulations. Ms. Block is a longtime NLRB attorney. She also served as an aide to Senator Ted Kennedy and she served as Assistant General Counsel at the National Endowment for the Humanities. Richard Griffin currently serves as General Counsel to the International Union of Operating Engineers and serves on the Board of Directors of the AFL-CIO's Lawyers Coordinating Committee. Mr. Flynn has held positions working both for the NLRB and for private law firms. Mr. Flynn is a Republican. Ms. Block and Mr. Griffin are Democrats. Ms Block and Mr. Griffin are perceived by most pundits to be pro-labor.
Generally, as is required by Article II, Section 3 of the United States Constitution, the President is authorized to appoint "officers of the United States" with the "advice and consent of the Senate". Article II, Section 3 also provides that the President shall have the authority to "fill up vacancies" for a single session "during the recess of the Senate." Article I, Section 5 provides that, "Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days . . ." The House of Representatives did not consent to the current Senate's recess. Consequently, it is being argued by a number of commentators that under the plain language of Article II, Section 3, President Obama did not have the authority to fill the NLRB vacancies by recess appointment and without the Senate's consent.
The legality of the President's recess appointments will likely draw legal challenges. Those who rely upon the Board's decisions and regulations will rightfully be concerned that any actions taken by this Board between now and the resolution of those legal challenges may be overturned. The NLRB may make rulings and adopt regulations in the coming months, but, assuming that challenges are brought to the legality of the President's recess appointments, employers cannot (if any of the recess appointees vote with a majority on any decision) be certain that those rulings and regulations will ultimately have the force of law.
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