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Update on the NLRB: Full, Five-Member Board Begins the Untangling Process

There has been a lot of recent activity by Congress and the National Labor Relations Board (NLRB) in the wake of the Supreme Court’s decision striking down 600 NLRB decisions.  Here’s an update on what’s taken place and where things stand.

New Members Sworn In

After operating for over 2 years with only 2 members, the Board received 2 more members this past March when President Obama appointed two Democrats during a congressional recess.

On June 22, the Senate confirmed the less controversial recess appointee, Mark Pearce, leaving the appointment of former union attorney Craig Becker to expire with the end of the 2011 Senate term unless he too is confirmed by then.

On June 29, the Senate confirmed Republican Brian E. Hayes as the Board’s fifth member. Prior to his appointment, Hayes, a former management-side attorney, was the labor policy director for the Republicans on the Senate Health, Education, Labor, and Pensions Committee.

Although the Board is finally at full capacity (the first time since December 2007), the term of Republican Peter Shaumber expires next month, leaving a three to one Democrat to Republican split.  While the Board only needs three members to issue valid decisions, it remains to be seen whether President Obama will take this opportunity to appoint a fifth member or leave the Board at four members to avoid another political battle in the Senate.

Ratification of Counsel’s Action

In December 2007 (before dropping to two members), the NLRB delegated to its General Counsel, all authority on litigation matters (e.g. to initiate and prosecute cases) that would have required authorization from the Board.  According to the Supreme Court’s recent decision, that authority was revoked when the Board began operating with two members.  In an attempt to remove doubt about the validity of the General Counsel’s actions, the current five-member Board ratified all prior actions by the General Counsel.

The Board also ratified all administrative, personnel, and procurement decisions made when the Board had only two members.

Board’s Plan for Pending Appeals

At the time the Supreme Court ruled that all 600 two-member Board decisions were invalid, appeals of 96 of those decisions were pending before various circuits of the U.S. Court of Appeals and the Supreme Courts.  The Board’s strategy for those cases is to seek a remand to the Board so they can be re-decided by a three member panel.  The panel will include the two original members who decided the case plus a randomly assigned third member.

The Board still does not appear to have a plan for addressing the remaining 500 cases, some of which were decided over two-and-a-half years ago.  We will continue to keep you updated on these developments.

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.