Pending Two-Member NLRB Offers Employers an Opportunity

Posted by Ryan O'Donnell on Mon, Nov 07, 2011 @ 02:00 PM

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The National Labor Relations Board (NLRB) might not accomplish much in 2012—and for employers across the nation, that’s probably good news.

Current NLRB Member Craig Becker’s term expires on December 31, 2011. Given that NLRB Chairperson Wilma Liebman departed from the board earlier this year, the NLRB is already down to three members; Becker’s departure would leave the Board with only two members.

Toothless in 2012

Based on the recent U.S Supreme Court decision New Process Steel L.P. v. NLRB, Becker’s departure could leave the Board powerless. The New Process Steel court held that the NLRB must have a “quorum of three members” in order to fully exercise its powers. Given the current Board’s ideological activism, its unlikely Republicans will approve another Obama nominee. Consequently, the Board would remain at two members—one member short of a quorum—until after the 2012 presidential elections. Of course, the President could nominate a moderate candidate capable of winning approval from both sides of the aisles. But as the President moves to lockdown his political base in time for the 2012 elections, such compromise seems unlikely.

 While the President could fill the vacancy through another recess appointment—Becker was also a recess appointment—the new Republican majority in the House would in turn use pro-forma sessions to keep Congress “technically in session,” thereby preventing “the Obama administration from making any recess appointments.”

So what’s the upshot of all this Beltway brew-ha-ha?

On January 01, 2010, the NLRB will—most likely—be weakened. And given the decisions handed down by the Board since President Obama took office, a toothless NLRB might not be such a bad thing. After spending much of the past three years struggling to respond to newly imposed rules and regulations, the looming Board vacancy will give American businesses a chance to focus on doing what they do best: creating jobs and growing the economy.

Bottom Line for Employers

  • Be prepared for some uncertainty regarding the NLRB until after the 2012 presidential elections
  • Use the NLRB’s reduced activity to make sure company policies and regulations are in full compliance with the recent deluge of labor-friendly Board decisions.  

Tags: NLRB, Unions, National Labor Relations Board, Craig Becker, New Process Steel