With Presidential Recess Appointments, NLRB Now Has a Quorum

By Ted Olsen & Bernie Siebert

In past newsletters, we have reported that the National Labor Relations Board, for months, operated with only two members, although it is designed to have five members.  Now pending before the U.S. Supreme Court is the question of whether hundreds of decisions issued by the two-person NLRB have legal effect. 

In late March 2010, shortly after Congress began its Easter recess, President Obama cured the NLRB's potential defect, by making so-called "recess appointments" for two additional Members of the Board:  Craig Becker and Mark Pearce.  With the two recess appointments, the NLRB now consists of four (out of a possible five) members. By all indications, the Board is heavily slanted in favor of unions.

Recess appointments - made while the Senate is in recess - are not subject to Senate confirmation, unlike other Presidential nominations of NLRB Members.  Both Becker and Pearce had been nominated by President Obama for the Board Member posts, but had not been confirmed by the Senate.   

To remain in effect, a recess appointment must be approved by the Senate by the end of the next session of Congress, or the position becomes vacant again.  In current practice, this means that the recess appointments for the two new Members will run until roughly the end of 2011.

With these two recess appointments, the NLRB is now heavily slanted in favor of unions.  Chair Wilma Liebman, who continues as a sitting Board member, was a lawyer for the International Brotherhood of Teamsters and has a well-established reputation for her pro-union decisions.  Member Becker has been Associate General Counsel for the Service Employees' International Union and the AFL-CIO, and in recent years, has been outspoken in support of the Employee Free Choice Act.  The President's action circumvents Republicans' blockage of his Senate confirmation.  Member Mark Pearce was a union-side lawyer from Buffalo, New York.  Unlike Becker, Pearce's initial nomination did not face Republican opposition.  Member Peter Schaumber, a former arbitrator from New York, continues to sit on the Board.

The President did not make a recess appointment for his third NLRB Member nominee, Brian Hayes, a former management attorney and Republican.  Member Schaumber's term will expire in August 2010, meaning that, in the near future, the President may nominate or appoint yet two more Board members. 

Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation.

©2010 Sherman & Howard L.L.C.                                                        May 10, 2010