On April 9, 2013 it was announced that President Obama was going to nominate three new members for the National Labor Relations Board. This would give the Board the five members it is supposed to have. Two of the nominees are Republican management side attorneys. The third nominee is a renomination of the Chair, Mark Pearce, who is a Democrat. Although this would fill out the required number of board members here is why the NLRB nominees are unlikely to get approved.
Two current members, Richard Griffin, Jr. and Sharon Block, were put on the board as “recess” appointees. The problem was that the Senate was not officially in recess when those appointments were made. Hence, in the minds of many they are “illegal and unconstitutional.” According to Ogletree & Deakins attorney Harold P. Coxson: “Congressional Republicans demanded that Griffin and Block resign once their recess appointments were declared unconstitutional by the District of Columbia Circuit Court of Appeals.” Given the fact that they did not did not sit well with Republican congressional members. Thus this slate of new nominees and the two existing ones will make it unlikely that the Senate will confirm this new board.
Cloud of uncertainty
The case that declared the appointments of Griffin and Block to be invalid was Noel Canning v. NLRB. The decision by the District of Columbia Circuit Court of Appeals not only declared those members as invalid the court also said that all the decisions they were involved with were null and void. Of course the NLRB did not agree with that decision and Chairman Pearce said they were going to basically ignore the decision and ask for that decision to be reviewed by the U.S. Supreme Court (that action is called certiorari.)
In the meantime
In the meantime The House of Representatives has introduced, according to Coxson, “…H.R. 1120, the Preventing Greater Uncertainty in Labor-Management Relations Act. The bill requires the Board to cease all activity until the uncertainty surrounding the NLRB is resolved. The legislation also requires a constitutionally confirmed quorum of Board members to review all decisions issued since January 4, 2012.“ Naturally the NLRB doesn’t care and will not abide by any resolution passed.
So we sit and wait to see if the NLRB will actually file for a review by the SCOTUS. Then we will have to await that decision. Until then you need to pay attention to the NLRB, make changes as you deem appropriate, and ignore them at your own peril.