Since January 2008, the National Labor Relations Board (NLRB) has been operating with just two members (one Democrat and one Republican). The result has been a number of legal and political issues as the Judicial branch struggles with questions of the right to operate with only two members and the political branches struggle to fill vacant seats.
Pending Supreme Court Review
As we wrote last May, because federal law is not clear as to whether the NLRB is authorized to act with only two members, several federal lawsuits have been filed challenging the validity of these two-member decisions (click here for that article). As those suits were appealed, the U.S. Courts of Appeals reached opposite conclusions. As a result, NLRB decisions were valid in some parts of the country and invalid in others. This conflict should end soon as last November, the U.S. Supreme Court agreed to decide a case addressing this dilemma. Oral argument is scheduled for next month and a decision should hopefully be published within a few months.
Senate Confirmations Still Stalled
President Obama has attempted to fill the three vacancies on the NLRB, but the Senate confirmations have stalled due to Republican opposition to one of those appointees. On February 9th, Senate Democrats failed to get the 60 votes needed to end debate and move forward with the confirmation of Democrat Craig Becker.
Opposition to Becker by Republicans and management groups is not surprising given his pro-union background. Becker has served as associate general counsel for the Service Employees International Union since 1990 and as staff counsel for the AFL-CIO since 2004. Moreover, as Senator John McCain noted during debates, Becker’s writings indicate a belief that portions of the proposed Employee Free Choice Act may be implemented by the NLRB without ever being passed.
Without the Becker confirmation, it is unclear whether the Senate will proceed on the remaining two confirmations. While those nominations appear to have the support of both political parties, Democrats claim there was a bipartisan agreement to vote on the entire slate as a package. The other two nominees are Democrat Mark G. Pearce, (an attorney who represents individuals and unions in labor matters) and Republican Brian E. Hayes (the labor policy director for the Republicans on the Senate Health, Education, Labor and Pensions Committee).
Possible Recess Appointments
If the Senate stalemate continues, there is another alternative. The President can make short-term recess appointments which do not require Senate approval. President Obama stated that he will “consider making several recess appointments during the upcoming recess because we can’t afford to let politics stand in the way of a well functioning government.” Perhaps President Obama will use that opportunity to place Becker on the NLRB at least temporarily.
We will continue to keep you informed as this political and legal drama unfolds.
Brody and Associates regularly advises its clients on union-related matters and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
