It’s a Little Too Little: Is the NLRB Headed Towards Irrelevance?

 by Todd L. Sarver

 In my last blog post, which can be found here, I observed that it seemed the NLRB had "jumped the shark" and lost its relevance. I suggested that one way to restore some legitimacy to the NLRB was to appoint true "neutral" Board members culled from a pool of neutral arbitrators. Alas, the President must not read this blog. 

As a refresher, Sharon Block (D) and Richard Griffin (D) -President Obama's now infamous "recess" appointments - were re-nominated earlier this year to fulfill complete terms. Members of the Senate, however, indicated a refusal to act on these two nominations without a full slate of members - a sentiment echoed by organized labor. Additionally, Republicans there had expressed reservations about confirming appointments which still were being challenged as unconstitutional. Indeed, Republicans in the Senate and elsewhere actually called upon members Block and Griffin to resign. 

To try and appease the objecting Republicans, organized labor, and others, the President then nominated three additional Board members on April 9: Mark Gaston Pearce (D), the current Chairman whose term expires August 27, 2013; Harry Johnson (R); and Phillip Miscimarra (R). While not adopting my suggestion that "neutrals" be nominated, at least the Senate had a full 5-member Board complement before it for confirmation - including disputed members Block and Griffin.

However, Congressional response to having all 5 nominations to consider wasn't to convene a confirmation hearing. Instead, the House passed the "Preventing Greater Uncertainty in Labor-Management Relations" bill on April 15. This legislation, as proposed, would strip the NLRB of the ability to make any substantive decisions either until the United States Supreme Court agrees to hear - and actually decides - the Noel Canning issue, where the decision of the D.C. Circuit holding as unconstitutional the recess appointments of Block and Griffin has been challenged by the Board, or until the Senate confirms a new quorum with two new, undisputed members in addition to Pearce.

Now, it is very doubtful that this bill will make it through the Democratically-controlled Senate, and even if it did, the President has vowed to veto it. That doesn't do anything to make this issue any less thorny in the present, however. As things stand now, the current unwillingness of the Senate to act on the nominees leaves the status quo in place. In fact, there are indications that the Senate has no intention of acting on the President's nominees pending Supreme Court resolution of the recess appointment issues raised in Noel Canning, indicating that congressional gridlock has now officially moved beyond Washington and spread to the operation of an agency which is extremely important to the way employers do business. 

Assuming nothing changes, when member Pearce's term expires at the end of August, the Board will have just two members left. With only two members, the Board will not have a quorum, and with no likelihood of another confirmed member joining members Block and Griffin anytime soon, the Board may be effectively shutdown by the end of the summer. Just like the 254th pick of the NFL draft then, it seems that the Board may be headed closer to irrelevance. That would, unfortunately, make the notion of the Board "jumping the shark" seem like quite a fond memory by comparison.

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