Amid controversy and without Senate confirmation, President Obama named three pro-labor appointees to the National Labor Relations Board. Is the move legal?
The president announced the appointment of three Democrats to the NLRB, which formulates rules on workplace union recruiting and elections. The three are:
- Sharon Block, the Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. She has served as staffer for the late Senator Edward Kennedy and as senior attorney to the NLRB.
- Richard Griffin, the General Counsel for the International Union of Operating Engineers. He also is on the board of directors for the AFL-CIO Lawyers Coordinating Committee.
- Terence Flynn, Chief Counsel to the NLRB Board Member Brian Hayes. Flynn previously was an attorney with the Labor and Employment Group of Crowell & Moring.
The three were named as recess appointments and without confirmation, which the law allows when the Senate isn’t in session. However, since December 17, the Senate has been holding pro forma sessions every four days. Senate Republicans are arguing that the sessions preclude recess appointments, since the Senate isn’t officially in recess.
The Obama administration parried that with a 23-page memo from the U.S. Justice Dept. stating that the president has the Constitutional power to make recess appointments during pro forma sessions when lawmakers hold pro forma sessions in which no business is conducted.
To counter that, the National Right to Work Foundation has filed a motion in federal court challenging the legality of the recess appointments.