President Obama Recess Appoints Three to Quorum-less NLRB

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January 9, 2012

On January 5, 2012, President Barack Obama recess appointed Sharon Block (D), Terence Flynn (R) and Richard Griffin (D) to the National Labor Relations Board (“Board”), restoring the Board to its full, five-member complement. Block, Flynn and Griffin join existing member Hayes and Chairman Pearce, after member Becker’s appointment expired at the end of 2011. Not surprisingly, these recess appointments are controversial for a variety of reasons, not the least of which is that Senate Republicans assert that these recess appointments are invalid because the Senate is not officially “in recess” as a consequence of brief, “pro forma” sessions held by Senate Republicans (the current Senate has held proceedings every few days during the holiday break by formally “gaveling in” and “gaveling out”). However, what constitutes a true “recess” necessary to invoke President Obama’s recess-appointment powers is unresolved and ripe for litigation.
Early reports indicate that Senate Republicans will lead the charge to legally challenge the legitimacy of President Obama’s recess appointments in court. Thus, moving forward, the validity of Board actions predicated upon a satisfactory quorum (which requires, at a minimum, three Board members), will be uncertain and the Board will proceed at its own peril-until Board decisions are appealed through the court system.
Below is the biographical information the NLRB released for Block, Flynn and Griffin:
Sharon Block, Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. Between 2006 and 2009, Ms. Block was Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for Senator Edward M. Kennedy. Ms. Block previously served at the National Labor Relations Board as senior attorney to Chairman Robert Battista from 2003 to 2006 and as an attorney in the appellate court branch from 1996 to 2003. From 1994 to 1996, she was Assistant General Counsel at the National Endowment for the Humanities, and from 1991 to 1993, she was an associate at Steptoe & Johnson. She received a B.A. in History from Columbia University and a J.D. from Georgetown University Law Center where she received the John F. Kennedy Labor Law Award.
Terence F. Flynn, currently detailed serving as Chief Counsel to NLRB Board Member Brian Hayes. Mr. Flynn was previously Chief Counsel to former NLRB Board Member Peter Schaumber, where he oversaw a variety of legal and policy issues in cases arising under the National Labor Relations Act. From 1996 to 2003, Mr. Flynn was Counsel in the Labor and Employment Group of Crowell & Moring, LLP, where he handled a wide range of labor and employment issues, including collective bargaining negotiations, litigation of unfair labor practices, defense of ERISA claims, and wage and hour disputes, among other matters. From 1992 to 1995, he was a litigation associate at the law firm David, Hager, Kuney & Krupin, where he counseled clients on federal, state, and local employment and wage hour laws, NLRB arbitrations, and other labor relations disputes. Mr. Flynn started his law career at the firm of Reid & Priest, handling labor and immigration matters from 1990 to 1992. He holds a B.A. degree from University of Maryland, College Park and a J.D. from Washington & Lee University School of Law.
Richard Griffin, General Counsel for International Union of Operating Engineers (IUOE). He also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee, a position he has held since 1994. Since 1983, he has held a number of leadership positions with IUOE from Assistant House Counsel to Associate General Counsel. From 1985 to 1994, Mr. Griffin served as a member of the board of trustees of the IUOE’s central pension fund. From 1981 to 1983, he served as a Counsel to NLRB Board Members. Mr. Griffin holds a B.A. from Yale University and a J.D. from Northeastern University School of Law.
We will monitor this situation closely and keep you posted on developments. If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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