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Happy Days Are Here Again? Not for the NLRB

November 11th, 2011  |  Matt Pavich

As 2011 draws to a close, an observer could be forgiven for thinking that the worst was behind the National Labor Relations Act. After all, 2011 is the year in which the Board has been excoriated for daring to require employers to post notices of their employees’ rights, for attempting to make its election processes more efficient and for reversing some of the more controversial decisions of the Bush II Board. Over 20 bills have been introduced in the US House and Senate seeking to amend the NLRA to limit the Board’s powers and reach (one even goes so far as to propose eliminating the Board entirely) and at least four states have passed amendments allowing them to require secret ballot votes as the only path to union representation, territory that just happens to fall squarely within the Board’s exclusive jurisdiction. All in all, a tough year.

And that might not be the worst of it.

On December 31, 2011, the recess term of Member Craig Becker is due to expire. Becker, the former SEIU counsel, has been nominated for a full term, but only people interested in buying the Brooklyn Bridge would like his chances for confirmation. Thus, when his term ends, the Board will be down to two members, Chairman Mark Gaston Pearce and Republican Member Brian Hayes. Which means that unless Congress confirms either Becker, or Terence Flynn, on January 1, 2012, the Board will no longer be able to issue decisions, per the Supreme Court’s ruling in New Process Steel v. NLRB.

So, whither the Board? The last week has seen several hints as to how the Board might operate while it waits for the addition of a third Member.

On November 9, the Board published a notice in the Federal Register of an order it issued that contingently delegates full authority over court litigation matters that otherwise would require Board authorization to the general counsel, Lafe Solomon. In the order, the Board also delegates full authority to certify the results of any secret ballot election conducted under the national emergency provisions of the Labor Management Relations Act. The delegation will only go into effect when the Board has fewer than three members. This order is a key step to ensuring that the Board retains the power to seek 10(j) injunctions against employers and unions over unfair labor practices during any period in which the Board is unable to issue decisions.

In addition to its 10(j) injunctive relief powers, the Board also has delegated authority to initiate contempt proceedings pertaining to the enforcement of or compliance with any order of the Board, and to institute and conduct appeals to the Supreme Court by writ of error or on petition for certiorari. Additionally, the Board has delegated full and final authority to certify to the attorney general, on behalf of the Board, the results of any secret ballot elections held among employees on the question of whether they wish to accept the final offer of settlement made by their employer.

At the ABA’s Fifth Annual Labor and Employment Law Conference last week, Pearce also suggested that he and Hayes will take advantage of the inability to issue decisions to deal with pressing staffing issues. Seven more Regional Directors are expected to retire this year and Pearce said that he and Hayes will focus intensely on filling those roles. Pearce also said that although he and Hayes are precluded from issuing decisions, that does not mean that are precluded from contemplating the merits of any cases before them.

In a broadside leveled during the ABA Conference, Pearce also stated that it is “incumbent” upon Congress to ensure that the Board continues to operate. Referring to the Senate’s inability to confirm nominees due to Republican opposition, Pearce said that there are “decisions that should and ought to be made” to ensure that the nation’s labor landscape is not unduly affected.

He should be careful what he asks for. If the Board’s Congressional critics were savvier, they would confirm the nomination of Flynn in the hopes that he and Hayes would begin to operate as a de facto Republican-appointed Board. After all, the best way to change the direction of the Board is to dictate who is on it.