Over a month ago, on Friday, April 24, 2009, President Obama announced his intention to nominate SEIU counsel Craig Becker and union attorney Mark Pearce as Members of the National Labor Relations Board. But since then, the White House has declined to formally nominate either. Why the delay? Some insight this week via Kiplinger:
Since early 2008, the two existing board members, one Democrat and one Republican, have acted under a legal maneuver blessed by the Bush Justice Department that allowed them to issue hundreds of decisions in less controversial cases on which they agreed. But on May 1, the U.S. Court of Appeals in Washington ruled that a decision by the two members doesn’t count because the board lacked a quorum. On the same day, a federal appellate court in Chicago took the opposite view, holding that a separate decision taken by the two members was appropriate and binding.
With the courts at odds, confusion reigns. Dozens of companies are going to court to challenge other rulings, but the two existing NLRB members say they will continue to issue rulings when they agree. The Washington court gave the board an easy out, saying that once a quorum is present, the board can reaffirm all of the rulings in question. But there’s the rub.
Obama has announced his intention to nominate two members — Craig Becker, the associate general counsel to the Service Employees International Union and Mark Pearce, who has teaches labor law — but has yet to submit the paperwork. When he does, it will take several months to win confirmation. In the meantime, the Board is in limbo, as are the companies and workers who need answers.
In addition to rubber-stamping all of the questionable two-member Board decisions, the Obama Board, headed by Chairwoman Wilma Liebman, is likely to begin overruling current law set in several areas by the fully-constituted Bush Board. We outlined several of these issues in previous posts here and here. While the passage quoted above suggests it might be some time before employers need to fully contemplate that, the Kiplinger piece continues:
There is another option — a recess appointment this week. But that’s the kind of move that Obama is likely to be reluctant to take because of the anger it arouses among the opposition party. Still, it may be the lesser of the evils facing the NLRB and those who depend on it.
On the one hand, President Obama must certainly be weighing the risks of enraging the GOP filibuster bloc by making a recess NLRB appointment at a time when he is seeking to have his first Supreme Court justice confirmed. On the other, he may need to show organized labor some attention with EFCA’s progress slowed and the President having been less than entirely enthusiastic about the bill in its current form. Employers would be wise to keep an eye on this in the coming week.