Pro-Union Attorney to Head NLRB

The U.S. Senate has confirmed union lawyer Richard Griffin to serve as general counsel for the National Labor Relations Board (“NLRB”).

The board’s general counsel is instrumental in determining when and how actively to pursue claims against employers. Mr. Griffin’s appointment, which passed on a near-party-line vote, assures that the NLRB will continue its recent aggressive enforcement and expansion of labor rules.

Readers of these pages will recall that Mr. Griffin was one of President Obama’s three controversial recess appointments to the NLRB in early 2012. He and two other recess appointees were replaced on the board this summer by members confirmed by the Senate.

The confirmations solidified the status of the board going forward, but serious questions remain about actions taken when the recess appointees constituted the quorum needed to vote.

In January, the D.C. Circuit held that President Obama violated the Constitution by unilaterally appointing the members because the Senate was not technically in recess. The decision has cast doubt upon the validity of hundreds of mostly pro-union rulings issued by the improperly constituted NLRB.

The Supreme Court has agreed to hear an appeal on that decision, called Noel Canning v. NLRB, this term. We will watch the proceedings carefully.