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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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