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NLRB continues with controversial moves and appointments

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in Employment Law,Human Resources

by Harold P. Coxson Jr., Esq.

Last year ended and 2012 began with a flurry of activity from the National Labor Relations Board (NLRB). Between controversial appointments to the board and action on two new rules concerning organized labor, the NLRB has given employers much to watch.

Controversial NLRB appointments

In a challenge to Congressional con­firmation authority, President Obama announced on Jan. 4—during the “inter­­­­session” period between the first and second sessions of Congress—his intent to make the recess appointments of Democrats Richard Griffin and Sharon Block and Republican Terence Flynn as members of the NLRB.

The three recess appointees will join confirmed Chairman Mark Pearce (a Democrat) and Brian Hayes, who is a Republican.

Normally, NLRB members must be confirmed by the Senate. To block recess appointments without Senate confirmation, Repub­­li­­cans had at­­tempted to refuse to recess, holding “pro forma” sessions over the holidays.

The recess appointments will last until the adjournment of the next session of Congress, after the 2012 elections.

Griffin was the general counsel of the International Union of Operat­ing Engineers. Block was the Obama administration’s Deputy Assistant Secretary of Labor for Congressional Affairs. Flynn was formerly chief counsel to the NLRB chair and later a member of the NLRB’s staff.

The Becker backdrop

The most recent recess appointments will continue the controversy begun by the recess appointment of NLRB member Craig Becker two years ago.

Before nominating the current recess appointees, Obama in Decem­­ber withdrew his nomination of Becker for another term. Becker formerly served as associate general counsel to the AFL-CIO and the Ser­­vice Employees International Union (SEIU). His confirmation was denied following a contentious Senate committee hearing in which his controversial writings in support of pro-union labor law re­­forms were highlighted.

Becker had written that many labor reforms could be achieved by the NLRB itself, without involving Congress.

On Dec. 19, all 47 Republican Sena­­tors wrote to Obama warning against repeating the controversy that surrounded Becker’s recess appointment in 2010. They warned him not to make any intersession recess appoint­ments of unconfirmed members to the NLRB.

They said doing so would “set a dangerous precedent that would most certainly be exploited in future cases to further marginalize the Sen­ate’s role in confirming nominees” and that such a maneuver “could needlessly provoke a constitutional conflict between the Senate and the White House.”

Obama’s most recent recess appointments only exacerbate the already con­­troversial political actions that have engulfed the NLRB. The appointments are likely to continue the pro-union legacy left by Becker, and almost certainly will trigger another battle with Congress—which will challenge the appointments, and the NLRB itself—in an election year.

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Author: Harold P. Coxson Jr. is a shareholder in Ogletree Deakins’ Washington, D.C., office. Contact him at (202) 887-0855.

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