Obama Makes Recess Appointments to NLRB

On Jan. 4, 2012, President Obama bypassed the Senate confirmation process and announced he would make three recess appointments to the National Labor Relations Board (NLRB). The three appointments are: Sharon Block (D), currently deputy assistant secretary for congressional affairs at the U.S. Department of Labor; Terence Flynn (R), chief counsel to NLRB Member Hayes; and Richard Griffin (D), general counsel for the International Union of Operating Engineers.  The appointments would join the two sitting board members and would result in a full board for 2012 with the three recent appointees’ terms expiring at the end of 2013. The decision by Obama to make the recess appointments is highly controversial and nearly unprecedented. It was believed that the Senate was holding pro forma sessions – a brief meeting of the Senate in which no business is conducted to satisfy the constitutional obligation that neither chamber can adjourn for more than three days without the consent of the other – thereby blocking the president from exercising his recess authority. However, Obama abandoned this precedent and contends that he has this authority. The move soured the already bad relations between republicans and democrats in congress making it even less likely that Congress and the president will be able to get together on big issues that require bipartisan support like major transportation and water legislation. The move by Obama will be contested in court and has escalated an already partisan discourse in Washington. In the future, the NLRB will be faced with handling many important cases impacting employers and employees. It is important to have objective decisions and ensure that the decisions will not be later contested in court challenges surrounding the president’s legal authority to make these appointments.  AGC is also concerned that the president bypassed the traditional vetting and confirmation process in the Senate and is instead escalating the partisanship in Congress rather than working on finding common ground on important legislation, such as working on a long-term transportation bill. For more information, please contact Jim Young at (202) 547-0133 or youngj@agc.org.