The National Labor Relations Board has been reduced once again to only three members when NLRB Chairperson Wilma Liebman departed from the Board when her term ended on August 27, 2011. With the expiration of Liebman’s term and the impending expiration of Member Craig Becker’s recess appointment on December 31, 2011, the NLRB may soon face a return to the gridlock and inaction that plagued the Board between December 2007 and March 2010, when it was reduced to two members.
Although the two-member Board, which included Liebman, issued nearly six hundred decisions between late 2007 and 2010, its actions were summarily invalidated by the Supreme Court in New Process Steel L.P. v. NLRB, 130 S. Ct. 2635 (June 17, 2010). The Court held in New Process Steel that the Board must have a quorum of three members in order to fully exercise the Board’s powers. In response to the decision, President Barack Obama recess-appointed Becker and Member Mark Pearce in July 2010 to return the Board to a full quorum. With Liebman’s departure, Pearce has been designated as the new Board Chairman.
Since that time, House and Senate Republicans have been highly critical of the Democratic majority Board’s recent rulemaking and adjudications, most notably a recent rule requiring employers to post notices of employees’ NLRA rights, a proposed rule that would affect the timing and process for union elections, and a NLRB case filed again Boeing, Inc. for allegedly relocating work from Washington State to South Carolina in order to avoid potential future strikes. In upcoming days and weeks, House Republicans are expected to vote on legislation to halt the Boeing case and overturn various Board rulemaking initiatives.
Meanwhile, the possibility of another powerless two-member Board has become increasingly likely, as Republicans are likely to prevent votes on Obama Administration nominees to replace Liebman and Becker and to keep the House of Representatives in pro forma session to avoid additional recess appointments. Although some legal experts have questioned the effect of House pro forma sessions on the Senate, which would actually vote on Board nominations, such a move arguably could prevent the Board from acting indefinitely. A return to two members would not prevent NLRB regional offices from conducting representation elections and handling unfair labor practice cases, but would halt any appeals of those cases to the Board, as well as the Board’s ability to issue final rules.
Liebman, whose term ended on August 27, 2011, was first appointed to the NLRB as a Member by President Bill Clinton in October 1997 and was confirmed the following month. President George W. Bush appointed her to two additional terms in 2002 and 2006. President Obama designated her Chairperson on January 20, 2009. The terms of Hayes and Pearce run until Dec. 16, 2012 and Aug. 27, 2013, respectively. The fifth seat on the Board has been vacant since the expiration of former Member Peter Schaumber’s term in August 2010. In January 2011, President Obama nominated Terence Flynn, who is currently Hayes’ Chief Counsel, to fill the vacancy created by Schaumber’s departure, but that nomination has not been acted on yet by the Senate.