On January 4, 2012, President Obama announced three recess appointments to the National Labor Relations Board (NLRB). The three individuals joining the five-member NLRB as Board Members are:
- Sharon Block, who is currently the Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor;
- Terence F. Flynn, who is currently the Chief Counsel to sitting NLRB Board Member Brian Hayes; and
- Richard Griffin, who is currently the General Counsel for the International Union of Operating Engineers (IUOE) and serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee.
Block and Flynn are Democrats, and Griffin is a Republican. They will join sitting NLRB members, Mark Gaston Pearce (a Democrat) and Brian Hayes (a Republican). Democrats will now have a 3-2 majority on the NLRB.
In New Process Steel, L.P. v. NLRB, the U.S. Supreme Court held that the NLRB requires at least three sitting members to exercise its authority. 130 S.Ct. 2635 (2010). Before the three recent appointments, the NLRB had only two sitting members due to the recent expiration of the term of another Obama recess appointment to the NLRB, Craig Becker. With the recess appointments, the NLRB will be able to continue functioning unless there is a successful legal challenge to the appointments.
Takeaway for Employers: With President Obama’s three recess appointments to the NLRB, employers can expect the NLRB to continue to be relatively employee/union-friendly for the foreseeable future. Because the National Labor Relations Act (NLRA) applies to the majority of private employers, whether unionized or non-unionized, now is a good time for employers to review their practices and policies to ensure compliance with the NLRA.