Back in Business: The NLRB Is Once Again a Party of Five

05 August 2013 Labor & Employment Law Perspectives Blog

On Tuesday, July 30, 2013, the Senate voted to confirm all five of President Obama’s nominees to the NLRB to avoid a major showdown over Senate procedural rules regarding approval of executive appointments. The Senate’s approval of the nominations means that for the first time in more than a decade, the NLRB will have a full complement of Board members and can resume and conduct business as “usual” — or at least as close to “usual” as the Board has seen in the last decade. The return of the Board to full membership likely also marks a winding down of much, but not all, of the political and legal wrangling that has plagued, and in some cases arguably paralyzed, the Board at various points in the last 10 years.

For example, between January 1, 2008 and April 5, 2010, the NLRB had only two working members due to failures by the executive and legislative branches to appoint and confirm new members. During this time period, many argued that by law, the Board required a quorum of at least three members to issue administrative decisions interpreting and applying the National Labor Relations Act (NLRA). Nevertheless, the Board continued issuing decisions by only two working members. However, in June 2010, the Supreme Court ruled that a two-member Board did not have the authority under the NLRA to issue decisions , thereby vacating the 554 decisions the Board had issued during the two-year period it lacked a three-member quorum. Following the Supreme Court’s decision, the Board, with a full quorum, then had to revisit those 554 decisions and cure the inherent error in decisions decided without the legal authority to do so.

More recently, the Board has found itself squarely at the center of a major constitutional debate relating to the relative powers of the president to appoint individuals to executive branch positions and the Senate to approve those appointments. As we have previously reported, earlier this year, the D.C. Circuit Court of Appeals decided in a decision known as Noel Canning that President Obama had unconstitutionally appointed two members to the NLRB without securing Senate approval for those appointments while the Senate was not formally in recess. That decision has touched off another debate about the power of the Board to operate, causing many cases proceeding under the NLRA, including in the various courts of appeals, to radically slow down. The Supreme Court has recently agreed to review the D.C. Circuit’s decision, and if it agrees that President Obama’s appointments were unconstitutional, another wave of invalidated Board decisions will wash over the world of labor.

The return of the Board to full membership likely means that, at least until the terms of the newly minted members begin to expire and another round of political wrangling potentially begins, the timeframes for much of the work performed by the Board should start to gradually shorten. Employers involved in representation matters and Board litigation, particularly litigation involving requests for full Board rulings, should begin to see gradually quicker processing of Board matters. This may not necessarily be welcome news to employers, as NLRB delays may have favorably affected union strength and labor relations issues at their locations. For other employers seeking timely resolution to Board-related matters, the expected gradual improvement to Board processing times may be more favorably received.

However, the return of the Board to full strength likely does not signal the end of the constitutional issues raised by the Noel Canning decision and its potential impact on the decisions previously issued by arguably unconstitutionally appointed members. While the new Board members could reexamine and reissue those decisions, commentators have opined that the Obama administration will avoid taking steps that might moot the issues before the Supreme Court because of the important constitutional matters present in that case. There is also the specter that a kept-intact D.C. Circuit decision without full Supreme Court review will substantially weaken executive branch power in the future. One way or another, the Senate’s confirmation of five Board members marks the likely beginning of the end of a long period of uncertainty with the NLRB. The actual ramifications of this transition for employers going forward remain to be seen.

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