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It’s All In The Timing: President Obama’s Recess Appointments to the NLRB
President Obama, on January 4th, took advantage of the U.S. Senate’s recess to appoint three controversial and previously blocked nominees to the vacancies at the National Labor Relations Board (NLRB). These appointments restore the Board’s quorum and enable it to issue decisions. The new Board members are:
  1. Sharon Block is Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. Ms. Block was Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for Senator Edward M. Kennedy. She also previously served at the National Labor Relations Board as senior attorney to Chairman Robert Battista from and as an attorney in the appellate court branch. Prior to government service she was in private practice. 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.
  2. Terrence E. Flynn currently serves as Chief Counsel to NLRB Board Member Brian Hayes. He previously was Chief Counsel to former Board Member Peter Schaumber. Prior to joining the NLRB, Flynn was in private practice. He holds a B.A. degree from the University of Maryland, College Park and a J.D. from Washington & Lee University School of Law.
  3. Richard Griffin is the General Counsel for the International Union of Operating Engineers (IUOE). He also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee. Mr. Griffin also served as a member of the board of trustees of the IUOE’s central pension fund and 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.
Recess Appointments
Article II, Section 3 of the U.S. Constitution provides:

"The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."

President Obama’s recess appointments will be in effect until January 4, 2014 unless they are approved by the Senate for a longer term or are dismissed by a legal challenge. The U.S. Constitution requires that appointments of senior federal officials must be confirmed by the Senate before the appointee assumes office; however, while the Senate is in recess, the President can act alone by making a recess appointment. This is what President Obama did. However, recess appointments are not final. An individual who is appointed during a recess must have his or her nomination approved by the Senate by the end of the next session of Congress or the position becomes vacant again. Unless confirmed or challenged, these recess appointments will be in effect until January 4, 2014.

Recess appointments are nothing new. Beginning with George Washington, presidents have made many recess appointments, including Supreme Court Justices William Brennan and Earl Warren, as well as Secretary of State Lawrence Eagleburger following James Baker’s resignation. According to the Congressional Research Service, President Bill Clinton made 139 recess appointments. President George W. Bush made 171 recess appointments, and as of December 8, 2011, President Barack Obama had made 28 recess appointments.

Legal Challenge
Senate republicans are challenging the constitutionality of the appointments by claiming that Congress was not actually in recess, that they had been holding pro forma sessions. A pro forma session occurs when a local member of Congress reports to Capitol Hill to quickly gavel in and out of session every three days to keep the legislative session active. At the heart of the legal challenge is how long the Senate must be in recess for such appointments to be valid and whether the pro forma sessions were legitimate sessions or merely a sham to prevent recess appointments. This issue will be presented to the courts because the Constitution does not specify a minimum length of time the Senate must be in recess before the president can make a recess appointment. In fact, President Theodore Roosevelt was one of the most liberal of all recess appointers, making several appointments during one-day Senate recesses. White House legal counsel asserts that the appointments are valid, because the pro forma sessions were designed to, "through form, render a constitutional power of the executive obsolete," and that the Senate was for all intents and purposes recessed. The president has maintained that congressional gridlock justified his recess appointments. There is little case law on this subject so the dispute will likely move quickly through the lower courts and come before the U.S. Supreme Court for a final decision.

In the meantime, the NLRB has been restored to full power and will be able to make decisions on cases before it. Key issues before the Board include:
  • Social media communication: Because all employees covered by the National Labor Relations Act (NLRA) have the right to join together in the workplace, the NLRB is evaluating whether and how employees can be disciplined for posting messages regarding work concerns on Facebook.
  • Rights to organize and collectively bargain: Two major cases pending before the Board involve whether graduate student employees can form a union and whether taxi drivers are independent contractors. Both decisions could ultimately impact thousands of workers beyond those bringing the charges.
  • Mandatory arbitration agreements: Mandatory arbitration agreements require parties to resolve employment disputes through binding arbitration rather than taking their disputes to court. A case pending before the Board alleges that enforcement of a mutual arbitration agreement by the employer denies employees their right to engage in concerted activity under the NLRA. 
If you have any questions about these topics or any other employment or labor law issue, please call me at 414-988-8404 or contact me via e-mail at: Thanks.

Posted 1/9/2012.
If you have any questions or comments, please contact me at 414-423-1330 or via e-mail at:
Thomas P. Krukowski, Esq.
Krukowski & Costello, S.C.
Legislative Partner

Krukowski &
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