Obama Makes Controversial Recess Appointments to the NLRB
January 11, 2012

On Jan. 4, Pres. Obama bypassed the Senate confirmation process and announced he would make three recess appointments to the National Labor Relations Board (NLRB). The appointees are:  Sharon Block (D), deputy assistant secretary for congressional affairs at U.S. Department of Labor; Terence Flynn (R), chief counsel to NLRB Member Brian Hayes; and Richard Griffin (D), general counsel for the International Union of Operating Engineers.  The appointments were sworn into office on Jan. 9, joining the two sitting board members – Chairman Mark Pearce (D) and Hayes (R) – to give the Board a full complement for the first time since August 2010.  The recess appointments will expire at the end of 2013.

The decision by Obama to make the appointments is highly controversial and nearly unprecedented. Republicans assert that the Senate was not in recess at the time, as it continued to meet in pro forma sessions for the specific purpose of preventing the President from exercising his recess appointment authority.  The President, however, contends he did, in fact, have the authority. The move by Obama is expected to be contested in court once the new Board makes an appropriate ruling or takes another action appropriate for the challenge.

The NLRB is faced with handling many important cases impacting employers and employees. AGC believes that it is important that the decisions will be impartial and will not be subject to legal challenges surrounding the President’s authority.  AGC is also concerned that the President bypassed the traditional vetting and confirmation process in the Senate and is instead escalating the partisanship in Congress rather than working on finding common ground on important legislation, such as a long-term transportation bill and other job-creating measures.