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Labor & Employment Alert: Obama recess appointments to NLRB

On January 4, 2012, President Obama announced the recess appointments of three Members to the National Labor Relations Board  — Richard Griffin, Sharon Block and Terence Flynn. These recess appointments were effective immediately and will expire at the end of the Senate’s next session, or December 2013. Before the appointments, the Board had two Members, a fact that limited the Board’s authority due to the lack of a quorum.

Richard Griffin

Griffin was the General Counsel for the International Union of Operating Engineers (IUOE), and has previously held a number of positions with the IUOE. He also currently serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee. Given his background, Griffin is strongly favored by organized labor.

Sharon Block

Block was the Deputy Assistant Secretary at the United States Department of Labor. She formerly served as Senior Labor and Employment Counsel to the Senate HELP Committee, where she worked for the late Senator Ted Kennedy. She has prior Board experience as a result of her service as senior attorney to former Board Chairman Robert Battista and as an attorney in the appellate court branch of the Board. Like Griffin, Block possesses a strong pro-labor background and is expected to complete the Board’s pro-labor majority.

Terence F. Flynn

Flynn previously served as Chief Counsel to Board Member Brian Hayes and former Board Member Peter Schaumber, where he oversaw a variety of legal and policy issues in cases arising under the National Labor Relations Act (NLRA). From 1990 to 2003, Flynn was in private practice, 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. Of the three current recess appointees, Flynn is the only Member with a management background.

Board returns to full strength with a Democratic majority

Established in 1935, the Board is charged with administering the NLRA by supervising union organizing drives, conducting union elections and mediating and adjudicating unfair labor practice charges. Generally, the current President’s political party (here, the Democratic Party) garners three members of the Board, while the minority party (here, the Republican Party) is aligned with the remaining two members of the Board.

With the three recess appointments, the Board now boasts a full complement of five Members: Chairman Mark Gaston Pearce (D), Griffin (D), Block (D), Brian Hayes (R), and Flynn (R). The Democratic majority makes it likely that this Board will continue its recent pro-labor efforts, such as its requirement for all employers to post “organizing rights” posters and, perhaps, its controversial attempt to completely overhaul the union election process. See the links below for more detailed discussions of these initiatives:

  • NLRB issues final rule requiring employers to post notice of employees’ rights
  • The Times They Are A-Changin’: The Obama NLRB issues proposed new rules to revamp the union election process
  • NLRB begins streamlinings of NLRB election process

Employers must continue to be proactive given the pro-labor Board majority

Given the Democratic majority on the Board and the expectation that the Board will continue its pro-union bent, all employers must takes steps to protect themselves. Non-union employers must be very aware of the potential for workforce unionization and take steps to minimize this likelihood, including putting in place policies prohibiting solicitation during working time, limiting access to your workplace by outside parties, and training management to recognize organizing activity. Moreover, union employers must pay close attention to changes in Board precedent and adjust their actions accordingly (including periodic review of work rules). Now, more than ever, it is essential for employers to proactively insulate their workplaces against the threat of unionization and this pro-labor Board.

If you would like to discuss the impact of the new Board members on your business, how unionization may impact your business, and/or how to minimize the risk of possible unionization, please contact:

Victor T. Geraci

Brendan J. Fitzgerald

Labor and Employment Practice

We have an impressive team of labor and employment attorneys who specialize in representing management in all aspects of labor and employment law at both the state and federal level. They have significant expertise in counseling clients on labor, employment and human resources issues and representing employers in state and federal courts and administrative agencies in all aspects of labor and employment-related litigation.

For more important legal and business information relating to employers, please visit our blog, the Employer Legal Advocate.

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© 2012 McDonald Hopkins LLC All Rights Reserved. This Alert is designed to provide current information for our clients, friends and their advisors regarding important legal developments. The foregoing discussion is general information rather than specific legal advice. Because it is necessary to apply legal principles to specific facts, always consult your legal advisor before using this discussion as a basis for a specific action.