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Recess Appointments Cement Pro-Union Direction of NLRB

Posted by Mike Rudman on Jan 5, 2012 10:59:00 AM

The National Labor Relations Board will apparently remain a flashpoint between employers and unions now that President Barack Obama has made three recess appointments to the NLRB.

National Labor Relations BoardThe appointments infuriated Congressional Republicans and cheered organized labor, which commended the President “for exercising his constitutional authority to ensure that crucially important agencies protecting workers and consumers are not shut down by Republican obstructionism.”

The White House yesterday appointed two Democrats, Richard Griffin, General Counsel for the International Union of Operating Engineers; and Sharon Block, Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor, and one Republican – Terence Flynn, Chief Counsel to current GOP board member Brian Hayes – to the NLRB.

The three new members will join Hayes and NLRB Chairman Mark Pearce to bring the board to its full, five-member status. The board would otherwise have lost a quorum after the previous recess appointment of union lawyer Craig Becker expired.

Most observers believe the appointments are unlikely to sidetrack the NLRB’s aggressive pro-union agenda. The board has significantly shifted the labor-management playing field in the past year with a series of actions including the filing of a complaint against aircraft maker Boeing for establishing a production facility in South Carolina and a mandate that employers post a union-rights notice in the workplace.

Of major concern to employers is the recent rule change that will both limit an employer’s ability to challenge voter eligibility (among other issues) prior to an election, and facilitate the implementation of ‘quickie elections’ long sought by organized labor. The Board voted in November to remove a paragraph requiring regional directors of the NLRB to wait a minimum of 25 days prior to scheduling an election.

“Make no mistake,” Hayes wrote, “the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.”

Union lawyer Griffin is expected to side with pro-labor Chairman Pearce, while Flynn will likely vote with Hayes, who has been a lone voice for employers during the past year.

The interesting wild card is Block, who previously worked both on Capitol Hill for the late Senator Edward Kennedy and at the NLRB for the Bush-appointed Chairman Robert Battista from 2003-2006. Experts who follow the NLRB, however, say it is unlikely that President Obama would make a controversial recess appointment of someone who did not support his approach to labor relations.

Adding uncertainty to the process is the possibility that Republicans may mount a legal challenge to the recess appointments. GOP Congressional leaders maintain that they never recessed and have been conducting brief pro-forma sessions throughout December and January.

Senate Minority Leader Mitch McConnell complained that the White House submitted the nominations of Block and Griffin two days before Congress recessed and that neither has gone through as hearing or debate.

"What the President did today sets a terrible precedent that could allow any future President to completely cut the Senate out of the confirmation process, appointing his nominees immediately after sending their names up to Congress. This was surely not what the framers had in mind when they required the President to seek the advice and consent of the Senate in making appointments," McConnell said.

Associated Industries of Massachusetts renewed its call for the NLRB to adopt a fair approach to labor relations.

“We continue to be concerned about the direction of the NLRB and its efforts to restrict the ability of employers to work cooperatively with workers to create a productive workplace,” said Sandy Reynolds, Executive Vice President of the AIM Employers Resource Group.

Topics: Issues, Employment Law, National Labor Relations Board

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