NLRB Drops to Three Members

By Sean P. Redmond  12/17/12

The National Labor Relations Board (NLRB) dropped to three members yesterday with the expiration of Member Brian Hayes’ term, which began in June 2010.  Hayes had been a steadfast critic of the Board’s majority because of their pursuit of an ambitious, but lopsided, agenda, though he lacked any real power to stop them.  Still, his departure leaves the Board without any Republican members, meaning it will have no dissenting voices in its decisions for the foreseeable future, which is unfortunate.

Going into the New Year, the NLRB now will consist of Chairman Mark Pearce, whose original recess appointment in 2010 stirred controversy that ultimately subsided with his Senate confirmation, and two other even more controversial recess appointees, whose appointments on the Board are the subject of a federal lawsuit to which the Chamber of Commerce is a party. 

The U.S. Circuit Court for the District of Columbia recently held oral arguments about these latter two appointments.  Were it to rule against them, with only Chairman Pearce as a member, the Board would have no quorum with which to conduct business.  Either way, Pearce’s appointment expires on August 27, 2013, which means the Board will lose its quorum regardless sometime next year. 

The most apparent solution to the current state of affairs seems to be new Senate-confirmed appointments to the NLRB, but that opens up an even more complex situation.  Since the two vacancies on the Board were Republican minority members, longstanding tradition dictates that their replacements come from the same party.  With two other seats awaiting a court decision, it seems unlikely that any such appointments will be made until that decision arrives for the simple reason that if the court invalidates the two recess appointments, two new Republican members would actually gain the power to override Mr. Pearce until his own appointment ends. 

Of course, longstanding tradition does not seem to preclude much these days, so it is hard to predict what actually will transpire.  In any event, the uncertainty that has loomed because of three dubious recess appointments will continue in 2013, which does not bode well for employers.