On Tuesday, September 29, 2009, on behalf of the National Labor Relations Board, the U.S. Solicitor General petitioned the Supreme Court for certiorari in two cases which address whether the Board can continue working with three of its five seats vacant. Earlier this year, in Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, the D.C. Circuit Court of Appeals ruled that decisions issued by the “two-member Board” were invalid because the law does not permit the board to act without at least three members. This caused a split with the decisions of three other Circuits — the First, Second and Seventh — which have reached the opposite conclusion.

The Board’s petition urges the Supreme Court to resolve the split. As reported by the Associated Press, “[t]he uncertainty has thrown into question more than 400 decisions that clarified the rules of union organizing or decided whether there was merit to claims of unfair labor practices.”

While the issue proceeds toward probable Supreme Court resolution, the Board continues to act with only two members — Democrat Chairwoman Wilma Liebman and Republican Member Peter Schaumber.  Back in April 2009, President Obama indicated that he would nominate union lawyers Craig Becker and Mark Gaston Pearce to the Board.  It was not until he announced his third intended appointee, Brian Hayes, in July that he actually officially nominated them. 

Partisan gridlock — which emerged in the 110th Congress on this issue when these seats opened late during the Bush administration — has continued to preclude confirmation of any appointees.  And in July, the Chamber of Commerce sent a letter to the Senate Health, Education, Labor, & Pensions Committee asking for a thorough hearing on Mr. Becker’s nomination.  The Chamber asserts that Mr. Becker, a former assistant general counsel of the Service Employees International Union (SEIU), has "extreme" and "unconventional" views of the National Labor Relations Act.  Some have speculated that a Board controlled by Chairwoman Liebman, and Messrs. Becker and Pearce would pursue not only frequent reversals of Board precedent on numerous issues, but also to impose elements of the Employee Free Choice Act by administrative regulation

Just before the last Congressional break in August, we speculated that President Obama might make recess appointments to place these three on the Board without Senate confirmation.  With no sign of confirmation proceedings currently on deck, and the Senate’s "target adjournment date" of October 9, 2009 looming, this prospect seems even more plausible.  The healthcare debate may extend the congressional calendar significantly, but in the absence of some eleventh-hour political compromise on confirmation, it seems the President will face the prospect of making recess appointments or continuing to accrue risk as the Laurel Baye case makes its way toward eventual Supreme Court resolution.

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