On January 4, President Obama announced his decision to appoint three new members to the National Labor Relations Board (NLRB) while the Senate was in recess. The board had previously been at risk of losing its ability to rule on cases as only two of its five seats were occupied, but the appointments of Department of Labor Attorney Sharon Block, labor lawyer Richard Griffin, and NLRB counsel Terence Flynn gave the Board a quorum.

In June 2010, the Supreme Court ruled that at least three NLRB members are required for the Board to be able to decide on cases, and Republicans spent the last year blocking Obama’s nominations in order to reduce the Board’s functionality. At the end of 2011, NLRB member Craig Becker’s term expired, leaving three empty seats, but Obama’s recess appointments restored the NLRB to its full membership with a Democratic majority.

The legality of Obama’s actions has been questioned for a number of reasons. First of all, many Republican leaders have said that the Senate was not actually in recess at the time of Obama’s appointments, which would make them unconstitutional. On January 13, the National Right to Work Foundation filed a motion contesting the constitutionality of Obama’s actions. The foundation’s argument was that at the time of the appointments, the Senate was holding pro forma sessions, meaning that it was meeting but not conducting business, and that it was therefore not technically in recess. According to a statement released by National Right to Work Legal Defense Foundation President Mark Mix, “The president’s legally dubious NLRB recess appointments pave the way for another year of forced-unionism giveaways.” However, just a week earlier on January 6, the U.S. Department of Justice had sanctioned the President’s right to make recess appointments while the Senate was holding pro forma sessions.

Another reason that these appointments have attracted so much criticism, or at least skepticism, is that many Republicans believe this was simply an attempt on Obama’s part to circumvent process. They argue that recess appointments are not loopholes that the President can use to avoid dealing with the Senate and that the Senate still needs to approve of the NLRB’s three new members before it can be official.

Despite these arguments, unions are optimistic about the NLRB’s new members. NYU’s Union of Clerical, Administrative, and Technical Staff (UCATS) does not currently have anything pending before the NLRB, but its president, Stephen Rechner, said that they “will continue to monitor the decisions that the new Board makes to evaluate how those decisions may apply to [their] circumstances as issues arise.”

Unlike UCATS, the Graduate Student Organizing Committee (GSOC), NYU’s graduate student union, does have a petition in front of the NLRB, and they have been waiting two years for a ruling. The United Auto Workers (UAW), which represents GSOC, is obviously in favor of Obama’s appointments and is hoping that the GSOC case will be one of the first that the new NLRB addresses, considering how long it has been pending.

According to Peter Wirzbicki, a PhD student in the History department and a GSOC organizer, they had been waiting for this to happen for a while. After all, GSOC, which does not currently have a contract with NYU because the administration is not legally obligated to recognize the union, lost its original contract in 2005 under a Bush-appointed, Republican-majority NLRB. GSOC was the first, and as of yet only, graduate student union with a contract at a private university, and winning the NLRB case would restore labor rights for graduate students at all private universities.

If the newly reformed NLRB sides with GSOC, it would overturn a 2004 decision that stated that graduate students at Brown University were students, rather than employees, and did not therefore have collective bargaining rights. It was this case that gave NYU precedent—and legal permission—to refuse to negotiate a contract with GSOC when the original expired in 2005.

Once GSOC’s case is passed, they will hold an election to determine whether or not a majority of graduate student employees want to be represented by GSOC-UAW Local 2110. If so, the NYU administration will be legally obligated to negotiate a contract with them. “We’ve always had a majority,” said Wirzbicki. “We’re very confident in that.”

Of course, all of this depends on the NLRB’s ruling, but even that would not be on the table if it weren’t for Obama’s recess appointments.

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