On January 4, 2011, President Obama announced that he was using his recess appointment powers to place Department of Labor Attorney Sharon Block (democrat), labor lawyer Richard Griffin (democrat), and NLRB counsel Terence Flynn (republican) to the NLRB (“Board”). The timing of the appointments was strategic as current board member Craig Becker’s term was set to expire. Due to the Supreme Court’s decision in 2010 finding that a board of only two members does not constitute a legal quorum and cannot make binding rulings, the Board with only two members left after Mr. Becker’s term ended would not be able to function.
Given the current political climate, President Obama is receiving sharp criticism about appointing the members during the Senate’s holiday recess. Legal challenges have been threatened regarding President Obama’s tactic. If the appointments stand, the Board will consist of three democrats and two republicans. And unfortunately, there is no definitive signal as to how these recent appointments will rule on matters during their respective terms. Until the first decisions are made (especially review of likely appeals of controversial issues like the one reported here), employers and labor attorneys will be anxiously waiting.
Note: The National Labor Relations Board (“NLRB”) is governed by a five-person board and a General Counsel who are all appointed by the President with the consent of the Senate. Each board member serves a five-year term while the General Counsel is appointed to a four-year term.