Congress Confirms Two to National Labor Relations Board
On June 22, the Senate confirmed the appointments of Brian Hayes, a Republican, and Mark Pearce, a Democrat, to the National Labor Relations Board, upping its membership to five. The newly confirmed members will serve five-year terms.
The confirmations come just days after the U.S. Supreme Court ruled that the NLRB was unqualified to render decisions during a 27-month period when it lacked a legal quorum. The board operated with two members from January 2008 to late March 2010, and in that time period, reviewed about 600 cases.
In April 2010, President Obama recess-appointed two additional members to the board: Pearce and Craig Becker, also a Democrat. The Senate did not vote on Becker’s nomination today; his temporary appointment expires in early January when a new Congress is sworn in.
At issue in the Supreme Court case, New Process Steel LP v. NLRB, was the question of whether the board had legal authority to issue decisions with three seats vacant. In a 5-4 decision on June 17, the nation’s high court ruled that that it did not; per the Taft-Hartley Act of 1947, the NLRB cannot render decisions with a quorum fewer than three members.
As a result of the high court’s decision, the NLRB likely will need to revisit hundreds of past decisions. The question of a two-member board’s legal authority has been raised in five more cases pending before the Supreme Court, and 69 that are pending before federal appellate courts. Those cases are expected to be remanded to the board.
Unions were critical of the Supreme Court ruling, saying that it will delay action on important labor disputes. Lynn Rhinehart, the AFL-CIO’s general counsel, says, “As has become the norm, workers are once again penalized by corporate stall tactics.”
But the Associated General Contractors’s associated general counsel, Denise Gold, says the ruling should have minimal impact on the construction industry beyond those firms and individuals directly involved in the cases declared invalid. During the period when three seats sat vacant, the board “didn’t decide any highly controversial cases,” she says. With only two members, she adds, “it would have been hard for them to come to a decision.”