National Labor Relations Board Now Filled With Obama’s Recess Appointees

On March 27th, President Barack Obama announced the recess appointments of Craig Becker and Mark Pearce to the National Labor Relations Board (NLRB).  The announcement came one day after Congress adjourned for the Easter recess.  While the appointments effectively preclude Becker and Pearce from serving normal five-year terms on the NLRB, they would serve for about a year-and-a-half, enough time to have a profound impact on labor relations in this country.

Business groups across the nation rallied to oppose Mr. Becker’s appointment to the Board.  His nomination to the board was defeated twice in the U.S. Senate prior to Obama’s announcement.  Mr. Becker is currently Associate General Counsel of the SEIU, as well as Associate General Counsel to the AFL-CIO.  He also was the putative architect of Illinois state law changes that resulted in the mass unionization of home care workers in that state.  Becker has argued the right of the NLRB to implement Employee Free Choice Act-like changes without an act of Congress. Mark Pearce represented unions in private practice after serving as an attorney for the NLRB.  He is one of the founding partners of the Buffalo, New York law firm of Creighton, Pearce, Johnsen and Giroux, where he practices union-side labor and employment law before state and federal courts and agencies.

Business Now Faces an Activist NLRB

Filling the Board’s vacancies with recess appointments now would give the Board time to achieve significant labor law reform through rulemaking without the Employee Free Choice Act (EFCA), also known as “card check.”  Under current law, the NLRB, without Congress, may implement significant changes in the application of the law through administrative rulemaking.  It did so when it issued rules on the appropriate bargaining unit for acute care hospitals, which significantly accelerated scheduling of union elections within that industry.  Rulemaking could be used to expand voting “access” through electronic or absentee balloting and enhance special remedies and penalties for employer unfair labor practices in initial organizing and first contract situations.  Along with traditional case-by-case decision-making and the development of internal agency policies, the Board could use rulemaking to realize some of the advantages unions sought, but have yet to achieve, through EFCA. 

No Balance Left in NLRB

The NLRB now consists of four members.  The term of office of the only Republican appointee on the Board, Peter Schaumber, will expire in August. This will result in a three-member Board, all of whom will be pro-labor Obama selections. There will be no imperative for the President to fill the other two vacancies, which will mean there will be no institutional balance in the Board’s decisions. Consequently, labor law reform will be accomplished through the reversal of numerous decisions, changes in election procedures, as well as aggressive rulemaking to enhance union chances for election success, and punitive new remedies for unfair labor practices designed to diminish management’s lawful exercise of its statutory rights.