Last weekend President Obama made two recess appointments filling seats at the National Labor Relations Board. Union lawyers Craig Becker and Mark Pearce will fill two of the three vacant seats on the Board. Members Becker and Pearce were originally nominated as a package with a third, Republican, nominee for Senate consideration. Senate confirmation did not happen. No Republican received a recess appointment. It remains an open question what steps may be taken to fill the final seat on the Board, if at all, and whether the final seat will be filled by a Republican to follow the historical 3-2 Board composition.
The recess appointments, which do not require Senate confirmation, come less than a week after NLRB argued the validity of two-member Board rulings at the United States Supreme Court. If NLRB loses at the Supreme Court there are hundreds of two-member Board rulings from the period since 2008 which may be voided. It is expected that those cases would be sent back for reconsideration by the new Board members.
The Board will operate for the foreseeable future with 3 Democrats and 1 Republican member making decisions on litigated cases. The lone Republican (Peter Schaumber) has a term which expires in August 2010. Thus, as of September we may have a Board composed exclusively of former union attorneys on the Democratic side deciding the cases litigated at NLRB.
On the day to day operations side of NLRB, the term of General Counsel Ronald Meisburg also expires in August 2010. Meisburg was appointed by the Bush administration. It is unclear who is likely to succeed him. It should be expected that the President will appoint a new NLRB General Counsel who will take a new and distinct view of law and policy to protect employees' concerted and union activities and the collective bargaining process. A new General Counsel's approach to labor issues can significantly impact the day to day operations of the NLRB's many field offices. It is at this level that most employers deal with the NLRB on investigation, hearing, and election issues.
Employers should stay tuned, train supervisors on labor law compliance, and make sure that policy and procedure are consistent with company objectives and the law.
