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National Labor Relations Board Starts New Year with Full Board Membership Following Aggressive Recent History: But Will It Last?

Yesterday, President Obama announced the recess-appointment of Sharon Block (D), Richard Griffin (D), and Terence Flynn (R) to the National Labor Relations Board (the Board). The addition of the new appointees to the existing Board (Chairman Pearce and Member Hayes) brings the Board to its full complement of five Board members, at least until the recess appointments expire at the end of the 2012 congressional session. The Board was last at full strength in August, 2010. The appointments are significant because under the 2010 U.S. Supreme Court decision, New Process Steel v. NLRB, 130 S. Ct. 2635 (2010), the Board cannot issue opinions without a quorum of at least three members. Generally, Board members are nominated by the President and confirmed by the U.S. Senate. The President does, however, have the Constitutional authority to make recess appointments to the Board when the Senate is not in session. The legality of President Obama’s most recent appointments is an issue for its detractors because there is an argument that the U.S. Senate is not technically in “recess,” and is holding pro forma sessions. Casting further doubt on the appointments is the fact that the President only initiated the nomination process for some of the nominees on December 15, 2011, the day before the Senate was scheduled to adjourn for the year – a move which may have been designed to circumvent the constitutionally required Senate review of nominees. The appointments have been hailed by labor union leadership and condemned by their pro-business counterparts. Both the National Association of Manufacturers and the Coalition for a Democratic Workplace, the primary challengers to the Board’s recent rule-making efforts, have announced their intent to invoke the legal process to invalidate the appointments. During calendar year 2011, the Democrat-dominated Board pushed forward pro-employee rulings on protections for employees on Facebook and similar social media postings. The Board also recently reversed a number of Board precedents that were viewed as pro-business with rulings viewed as pro-labor. In particular, the Board’s decision in Specialty Healthcare, 357 NLRB No. 83 (2011), made it easier for unions to target small fragments of an employer’s workforce for organization, and its Kentucky River Medical Center, 356 NLRB No. 8 (Oct. 22, 2010), and J. Picini Flooring, 356 NLRB No. 9 (Oct. 22, 2010), decisions strengthened the Board’s remedial powers by increasing interest on back pay awards and requiring employers to post remedial notices electronically. If President Obama’s recess appointments survive judicial scrutiny, more changes are sure to come.