Will President Obama's Recent NLRB Appointments Clear Backlog Of Cases?

By Christopher S. Andre

The National Labor Relations Board is a five member body of presidential appointees. However, for approximately the past 26 months, the NLRB has operated with just two sitting board members, Republican Peter Schaumber and Democrat Wilma Liebman. This has resulted in a backlog of unresolved cases pending before the NLRB and in a case pending before the United States Supreme Court calling for the Supreme Court to decide whether the National Labor Relations Act permits the NLRB to act when there are only two sitting members of the NLRB, New Process Steel v. National Labor Relations Board, in which the Supreme Court heard oral arguments on March 23, 2010. Click here for a transcript of the oral arguments.

As we previously reported here, on Saturday, March 27, 2010, President Obama made two recess appointments to the NLRB, appointing Craig Becker who, as we reported here, failed to obtain Senate confirmation largely on account of his close union ties, and Mark Pearce, another union side labor lawyer. So called "recess appointments" made while the Congress is in recess enable the White House and its nominees to postpone until a later date when the Congress is in session Senate confirmation of the appointees. As presently constituted, the NLRB now how has three sitting Democrats, one sitting Republican, and one seat still vacant.

In an April 12, 2010 article entitled, "Labor Cases Affected by Bottleneck May Speed Up," The Press-Enterprise reports that the backlog of cases pending before the NLRB, reportedly numbering approximately 250, is expected to ease with the two new "recess appointments." The Press-Enterprise reports also that "Because Obama is a Democrat, it is expected the new board will lean toward labor."

Among those interviewed for that article was AALRR partner Thomas A. Lenz who served as a staff attorney with the NLRB before joining AALRR. Tom told the Press-Enterprise "[t]he NLRB is very prone to political sway." Tom further explained the NLRB board members "don't rely on pages and pages of regulations like the Labor Department. Rules vacillate according to politics. What was law in the Clinton administration is not law during the Bush administration."

NLRB Appointments Foreshadow Imminent Change In Labor Law Enforcement

By Thomas A. Lenz

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.