Controversy over President Obama’s appointments to the National Labor Relations Board has drawn attention to a panel with two members who have Buffalo ties.
The U.S. Court of Appeals in Washington, D.C., last week said Obama’s three recess appointments in early 2012 were “constitutionally invalid” because the Senate was not in recess at the time. One of the appointees was Richard F. Griffin Jr., a Buffalo native and veteran labor lawyer.
The NLRB’s chairman is Mark G. Pearce, a founding partner of a Buffalo law firm. His appointment was not at issue in the court case.
The court’s decision has raised questions about the status of the 2012 appointees, as well as the implications for hundreds of rulings issued during their time on the panel and a president’s authority to make recess appointments.
The NLRB is an independent federal agency whose task is to investigate and remedy unfair labor practices, as well as to conduct secret-ballot elections to determine whether employees want union representation. The board has five seats, but it currently has only three members – Pearce, Griffin and Sharon Block – and two vacancies.
In January 2012, Obama named Griffin, Block and Terence F. Flynn to the NLRB as recess appointments, after the Senate did not act on their nominations. Block and Griffin are Democrats, and Flynn is a Republican. Flynn resigned in July amid allegations he had leaked inside information.
Pearce and Griffin did not respond to interview requests made through the NLRB’s media office Monday. Pearce commented on last week’s ruling in a statement, saying the board “respectfully disagrees” with the court’s decision “and believes that the president’s position in the matter will ultimately be upheld.”
Pearce said that the court order applied to “only one specific case” and that “similar questions have been raised in more than a dozen cases pending in other courts of appeals.”
“In the meantime, the [NLRB] has important work to do,” Pearce said. “The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.”
Over the years, the NLRB has seen other challenges or delays to a president’s nominations. Matthew D. Dimick, a University at Buffalo law professor, said the wrangling is often less about the nominees’ qualifications than about broader political battles and the direction of the NLRB. The board ends up as a “lightning rod” for those disputes, he said. “I think the board has become a symbol for that,” he said.
Dimick recalled the controversy that flared about the NLRB in 2011 when the agency filed a lawsuit against Boeing Co. over the aircraft manufacturer’s opening a new, nonunion plant in South Carolina rather than in Washington State. The NLRB later withdrew that case.
The UB law professor said he expects that the Obama administration will appeal the decision about recess appointees to the Supreme Court.
The NLRB case is a reminder of the strong Buffalo connections among the board’s few members.
Pearce, a native of Brooklyn, is a UB Law School graduate. He was a founding partner of the Buffalo law firm of Creighton, Pearce, Johnsen & Giroux, and previously served as a district trial specialist with the NLRB’s Buffalo office.
Pearce was named to the NLRB by Obama in a 2010 recess appointment and was confirmed by the Senate. He became chairman in 2011, and his term is to expire Aug. 27.
Griffin previously served as general counsel for the International Union of Operating Engineers.
The terms of Griffin and Block are due to expire at the end of this year, according to the NLRB.
Another Buffalo native, Sarah M. Fox, served on the NLRB from 1996 through the end of 2000 as an appointment of President Bill Clinton. Fox was a Buffalo journalist before becoming a lawyer on Capitol Hill.
As for Buffalo’s strong current presence on the NLRB, Dimick said that could be a byproduct of New York State’s traditionally high rate of union membership compared with most other states, generating more potential nominees with labor backgrounds.
Bloomberg News contributed to this report. email: email@example.com