As we have discussed here many times before, the National Labor Relations Board is no stranger to headlines, and it is once again at the center of a political and constitutional showdown in Washington.

At the end of 2011, with the recess appointment of Board member Craig Becker expiring, the NLRB was down to only two members – less than the quorum (3 of 5 members) it needed to conduct official business.  Therefore, on January 4, President Obama made three appointments to the NLRB – Sharon Block, Richard Griffin, and Terence Flynn.  Making those appointments seemed simple enough, but at the Board, things are almost never uncontroversial these days. 

According to President Obama, the appointments he made were recess appointments and, therefore, did not require Senate confirmation.  That matters because – probably not surprisingly – the Senate had previously blocked confirmation of each of the three appointed Board members.

Now, every President since George Washington has exercised his constitutional power to make appointments when the Senate is in recess.  This authority stems from a provision in the United States Constitution about that process, dating back to when such appointments were more frequently necessary in the early days of the Republic because the Senate was only in session for short periods and positions needed to be filled.  Although the Senate is now in session for a majority of the year, presidents from both political parties have continued to use recess appointments over the years to appoint controversial figures who otherwise would not be confirmed by the Senate – such as in this case.

Not surprisingly, Republicans and pro-business groups have argued that President Obama’s “recess” appointments in January were invalid because the Senate was not in recess when the appointments were made and, in fact, held pro-forma sessions every three days during the Senate’s usual holiday break in order to keep session open.  Therefore, according to these groups, the President’s Board appointments must be subject to Senate confirmation before they can be valid.  The key question then is whether the Senate was in recess within the meaning of the U.S. Constitution when the appointments were made?

This issue will likely be decided by the courts, inasmuch as the first lawsuit has been filed by the National Federation of Independent Business (and others) to block the appointments.  While the issue will not be resolved soon and will likely be determined ultimately by the United States Supreme Court, the matter is significant because if the appointments are later found to be invalid, then the decisions and regulations passed by the NLRB in the interim may be null and void.

Of course, with the Supreme Court already smacking the Board once about 18 months ago in the New Process Steel case – discussed here – for issuing a number of decisions unlawfully without having a proper quorum of members to act, it should be used to going through that process.  No matter how you look at it, though, every new dispute at the Board seems stained with an even greater layer of politics than the last one.  It is no wonder that there is so much dissatisfaction with the way Washington does business these days.

Joseph Leonoro concentrates his practice in matters involving labor and employment law.
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» Read the full biography of Joseph U. Leonoro at Steptoe & Johnson

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