White House Withdraws NLRB Nominee Richard Griffin—Supreme Court Could Still Challenge Obama

AFL-CIO president met with the White House to handpick replacement nominees

Richard Griffin, Sharon Block /
July 16, 2013

The White House withdrew the nomination of National Labor Relations Board members Richard Griffin and Sharon Block as part of a deal to avoid the nuclear option in the Senate on Tuesday, but multiple legal experts told the Washington Free Beacon the Supreme Court could still go after President Barack Obama’s abuse of his recess authority.

The Washington, D.C., Federal Appeals Court ruled in January that Obama unconstitutionally used his recess authority to appoint Block and Griffin while the Senate was still in session in January 2012. The Supreme Court agreed to hear the case, Noel Canning v. NLRB, next fall and could potentially strike down every decision the NLRB issued with Block and Griffin on the board. A second federal court later affirmed the Noel Canning ruling.

"The removal of these appointments does not alleviate the underlying issues about recess appointments," said David Phippen, a labor attorney with Constangy, Brooks, & Smith. "Simply removing them [Block and Griffin] does not affect any of the taint that the D.C. and 3rd Circuits found in their ruling."

Even if the companies at the center of the legal challenge agree to withdraw their cases, the Supreme Court still has the option of going through with the case.

"Supreme Court doctrine probably would permit the court to consider and decide the case even if the dispute became essentially moot," Phippen said. "The court may decide the case anyway if the situation is repeatable."

Block and Griffin’s exit from the nomination battle does nothing to reverse the hundreds of decisions they issued while serving on the NLRB, according to Glenn Taubman, an attorney with National Right to Work Legal Defense Foundation.

"Noel Canning is not moot by the nomination of new board members," said Taubman, who has filed several cases challenging the board’s authority.

The Supreme Court has demonstrated a willingness to overturn board decisions en masse. The high court struck down more than 1,000 NLRB rulings in 2010 because the board did not have the three members necessary to issue rulings in the New Process Steel case.

"Justice [Elena] Kagan, when she served as Obama’s solicitor general, told the Supreme Court in that case that appointing new board members did not render the case moot," Taubman said.

The NLRB had only four board members during Block and Griffin’s tenure. If their appointments are declared invalid, the Supreme Court could dismiss all their rulings, including hundreds that they issued since the Appeals Court declared their appointments illegal in January.

Taubman said the Obama administration’s actions could cause disarray in the American workplace. If the Supreme Court strikes down the NLRB rulings, the newly appointed board would have to re-hear the cases and issue new rulings.

"Obama will cast the public into litigation chaos because there will be hundreds and hundreds of cases that will need to be re-decided," he said.

Republicans vowed to block Block and Griffin’s nominations to the board after the pair ignored the Noel Canning decision and continued issuing rulings and were pleased with the nominations being scuttled.

"I recommended back in January that the president send us two new nominees for the NLRB since, obviously, the two nominees who were currently on the NLRB were unconstitutionally appointed," s Sen. Mitch McConnell (R., Ky.) said. "I'm pleased that the administration is going to send up two [new] nominees."

Labor groups launched public campaigns to push the nominations through the Senate using the nuclear option last week.

The Communication Workers of America, which threatened to pull campaign donations from any Democrat who voted against the nuclear option, condemned the deal. Union president Larry Cohen accused Democrats of "toss[ing Block and Griffin] under the bus."

"[The GOP was] able to convince four or five Democrats to go with them," he told the Hill. "Those Democrats will know we know who they are, and we know, as a progressive coalition in this country, you will not split up the fight, and we will continue to work together … to fix the Senate."

AFL-CIO president Richard Trumka, who demanded that Senate Majority Leader Harry Reid (D., Nev.) pull the trigger on the nuclear option last week, was mum after the deal was announced. The union reportedly met with the White House and handpicked the replacement nominees on Tuesday afternoon, according to Politico.

The AFL-CIO did not respond to request for comment.