On January 4, 2012, President Obama announced that he would make three recess appointments to the National Labor Relations Board (“NLRB”). The three new appointees, who will be eligible to serve until December 2014, will bring the Board to its five member capacity.
The new appointees are Sharon Block, who is presently Deputy Assistant Secretary of Labor for Congressional and Intergovernmental Affairs (and former labor counsel to the late Senator Edward Kennedy); Richard Griffin, who is General Counsel to the International Union of Operating Engineers; and Terrence Flynn, who has been serving as Chief Counsel to NLRB member Brian Hayes, a Republican. The appointments of Ms. Block and Mr. Griffin, both of whom are Democrats, will give the Board a 3 to 2 Democratic majority.
Many observers were surprised by the President’s willingness to use recess appointments to bring the Board to full strength. In a recent letter, 47 Republican Senators asked the president to refrain from using the recess appointment process to circumvent Senate approval of his nominees. The move was especially surprising since Ms. Block and Mr. Griffin were not even nominated for consideration until December 15, 2011, meaning that the Senate was given virtually no time to consider the appointees.
With the NLRB at full strength once the recess appointments take effect, it is likely that the agency will move forward with its controversial new rules for expedited representation elections, as well as the notice posting requirement, both of which are scheduled to take effect on April 30, 2012. Additionally, the Board will likely continue to issue labor-friendly decisions, such as the August 31, 2011 Specialty Healthcare case allowing unions to organize “micro-bargaining units.” Barring a change in occupants at 1600 Pennsylvania Avenue on January 20, 2013, employers should expect to see five more years of an activist NLRB that will continue to take steps to facilitate union organizing activity.