HR Management & Compliance

NLRB Recess Appointments Draw Fire

President Barack Obama’s decision to use recess appointments to keep the National Labor Relations Board (NLRB) from losing its quorum has ignited a firestorm of opposition among lawmakers and business groups.

Obama announced his intent on January 4 to use recess appointments to fill three open NLRB seats. The Board, which is supposed to have five members, had been operating with three since August because terms had ended for two previous members and the Senate hadn’t confirmed Obama’s nominations. The term of another member expired at the end of 2011, meaning the Board was set to lose its quorum and would therefore be unable to act.

“The NLRB’s credibility has suffered greatly during this administration due to an aggressive agenda favoring the unions,” U.S. Chamber of Commerce Executive Vice President for Government Affairs Bruce Josten said following the appointments. “The president could have chosen to work with the Senate and stakeholders to see if a package of nominees could be confirmed that would help restore the agency’s independence and credibility.”

Josten also said Obama’s actions would “further poison the well with regard to labor-management issues pending in front of the Board and on Capitol Hill.”

The appointees are Sharon Block, deputy assistant secretary for congressional affairs at the U.S. Department of Labor; Terence F. Flynn, chief counsel to NLRB member Brian Hayes; and Richard Griffin, general counsel for the International Union of Operating Engineers and a member of the board of directors for the AFL-CIO Lawyers Coordinating Committee.

Senate Republicans sent a letter to Obama at the end of 2011 urging him not to use recess appointments to fill the Board’s seats. Senator Orrin Hatch spearheaded the letter, and he voiced his outrage regarding the NLRB appointments and another recess appointment naming a director of the Consumer Financial Protection Bureau.

“Today, the White House doubled down on its assault on the Constitution’s separation of powers — circumventing the people’s representatives in Congress — by not only appointing a new regulatory czar, but also new bureaucrats to the National Labor Relations Board to placate its big labor allies,” Hatch said. “The President put his own political future and the radical views of his far-left base ahead of constitutional government. The President will have to answer to the American people for this power grab.”

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