Member Article

The National Labor Relations Board (“NLRB”) is finally moving towards its full complement of five members. On March 27, 2010, President Barack Obama made two recess appointments (a procedure not requiring legislative approval), increasing the NLRB’s membership from the two that have been serving the past couple of years to four members. The appointments still leave the NLRB one member short; however, three members constitute a quorum that can unquestionably decide cases before the Board.

The two new members, Craig Becker and Mark Pearce, will join with current NLRB Chairwoman Wilma Liebman to create a 3-1 Democratic majority. Critics have characterized these three as aggressively pro-union. By contrast, supporters believe they simply seek a more level playing field for union organization efforts and bargaining.

Critics and supporters alike are anticipating that the nearly completed “Obama Board” will attempt to place its imprint on the law and will soon have the opportunity to do so. A host of cases are currently pending before the NLRB and have not been decided based on the absence of an NLRB quorum. Included are cases relating to employer or union initiated litigation against the other; specification of contract provisions in neutrality card check agreements; an employer’s bargaining obligation over changes to a health benefit plan following contract expiration; bannering, signaling, and use of giant inflatable rats at job work sites; and the legality of prohibitions on hand-billing by off duty employees on an employer’s leased premises.

It is also anticipated that the Obama Board may overturn key decisions of the Bush Board. These changes, however, may not be immediate. In general, the NLRB will not entertain a party’s motion for reconsideration to reverse an adverse ruling simply because the Board’s membership has changed. Instead, the NLRB may choose to revisit and change its prior decisions as new cases work their way through the system.

It is also expected that with the addition of new appointees, the NLRB will consider using its rule making powers (which rarely have been exercised), rather than employing its case-by-case adjudication, to address election procedures, timelines, and possible remedial changes in the law.

Becker was previously Associate General Counsel for both the AFL-CIO and Service Employees International Union (“SEIU”). His nomination to the NLRB has been regarded as controversial and the Senate previously rejected his nomination.¹ President Obama’s other appointment was Mark Pearce, founding partner of the union side labor law firm Creighton, Pearce, Johnsen & Giroux. These recess appointments for Becker and Pearce will be in effect for at least 20 months. A Republican, Brian Hayes, has also been nominated to the NLRB, but it is expected that he will be considered and vetted in the normal legislative process.

Plainly, the Obama administration expects that its appointments to the NLRB, similar to the administration’s previous appointments in the Department of Labor and Equal Employment Opportunity Commission, will effectuate change and make a difference in the administration and the operation of the labor and employment laws. Stay tuned for further developments. 

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¹ Last Friday, March 26, 2010, the GOP, led by John McCain and Orrin Hatch, wrote a letter to President Obama warning him that appointing Becker would set a dangerous precedent and materially alter the balance of power between the Executive and Legislative branches. McCain also decried the move as a blatant attempt to pay organized labor back for supporting Obama during the election.