Hunton Employment & Labor Perspectives

In a political shocker, President Barack Obama announced Wednesday that he will make recess appointments to immediately fill three NLRB Board Member vacancies.  President Obama’s appointees include two Democrats, union lawyer Richard Griffin and Labor Department official Sharon Block, and one Republican, NLRB lawyer Terence Flynn.

The move is attracting political heat for two reasons.

First, President Obama did not allow much time for the confirmation process considering that Griffin and Block were nominated only weeks ago.  Flynn, on the other hand, was nominated in January 2011 but his confirmation has stalled.

Second, the recess appointments were made while the Senate was not technically in recess.  To avoid recessing, the Senate has been holding pro forma sessions, many of which last only seconds.  Making recess appointments while the Senate is not technically in recess has never been done.  Such a move will unquestionably cast doubt over the validity of the Board’s actions in the coming year and is likely to face legal scrutiny.

The appointments come days after the expiration of former NLRB Board Member Craig Becker’s recess appointment, which was expected to lead to a Board shutdown given that the Board lacks the three members required to reach a quorum.  Once the appointments are finalized, the Board will be restored to five members for the first time since August 2010. 

In a press release accompanying the appointments, President Obama stated, “We can’t wait to act to strengthen the economy and restore security for our middle class and those trying to get in it, and that’s why I am proud to appoint these fine individuals to get to work for the American people.”
 
The recess appointments are likely to cause a political firestorm considering that, two weeks ago, Senate Republicans wrote a joint letter to President Obama urging him “not to undermine the Senate’s advice and consent role” by making recess appointments.  “[W]e urge [you] to instead allow for a full and thorough review of their qualifications through regular order in the Senate,” wrote the Senate Republicans.

The appointees’ complete biographies, courtesy of the NLRB website, are as follows:

Sharon Block, Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor.  Between 2006 and 2009, Ms. Block was Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for Senator Edward M. Kennedy. Ms. Block previously served at the National Labor Relations Board as senior attorney to Chairman Robert Battista from 2003 to 2006 and as an attorney in the appellate court branch from 1996 to 2003.  From 1994 to 1996, she was Assistant General Counsel at the National Endowment for the Humanities, and from 1991 to 1993, she was an associate at Steptoe & Johnson.  She received a B.A. in History from Columbia University and a J.D. from Georgetown University Law Center where she received the John F. Kennedy Labor Law Award.

Terence F. Flynn, currently detailed to serve as Chief Counsel to NLRB Board Member Brian Hayes.  Mr. Flynn was previously Chief Counsel to former NLRB Board Member Peter Schaumber, where he oversaw a variety of legal and policy issues in cases arising under the National Labor Relations Act.  From 1996 to 2003, Mr. Flynn was Counsel in the Labor and Employment Group of Crowell & Moring, LLP, where he handled a wide range of labor and employment issues, including collective bargaining negotiations, litigation of unfair labor practices, defense of ERISA claims, and wage and hour disputes, among other matters.  From 1992 to 1995, he was a litigation associate at the law firm David, Hager, Kuney & Krupin, where he counseled clients on federal, state, and local employment and wage hour laws, NLRB arbitrations, and other labor relations disputes.  Mr. Flynn started his law career at the firm Reid & Priest, handling labor and immigration matters from 1990 to 1992.  He holds a B.A. degree from University of Maryland, College Park and a J.D. from Washington & Lee University School of Law. 

Richard Griffin, General Counsel for International Union of Operating Engineers (IUOE).  He also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee, a position he has held since 1994.  Since 1983, he has held a number of leadership positions with IUOE from Assistant House Counsel to Associate General Counsel.   From 1985 to 1994, Mr. Griffin served as a member of the board of trustees of the IUOE’s central pension fund.  From 1981 to 1983, he served as a Counsel to NLRB Board Members.  Mr. Griffin holds a B.A. from Yale University and a J.D. from Northeastern University School of Law.