From December 2007 to March 2010, the National Labor Relations Board (NLRB) operated with only two members, while three of its five seats were vacant. During this 27-month period, Chairman Wilma Liebman (D) and member Peter Schaumber (R) issued nearly 600 decisions.
Seventy of those decisions were appealed by the losing parties to the federal courts of appeal based on the belief that the two-member decisions were invalid for lack of a quorum, under the language of Section 3(b) of the National Labor Relations Act. Under that law:
"[t]he Board is authorized to delegate to any group of
three or more members any and all of the powers which it may itself exercise… A vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board, and three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group designated pursuant to the first sentence hereof."
In June, in the case of
New Process Steel v. NLRB, the U.S. Supreme Court ruled that the NLRB lacked authority to issue decisions with only two members. By a 5–4 vote, the Supreme Court found the language of the act required the board to have a quorum of three members, not two, at all times. The court majority declared the " 'straightforward' language of the act and the board’s longstanding practice" supported the three-member quorum requirement as the only way to harmonize and give meaningful effect to all of the provisions in Section 3(b).
Filling VacanciesMeanwhile, in March and June, President Obama made the appointments necessary to fill the previous vacancies on the NLRB. The most controversial appointment was Craig Becker, formerly an attorney for the Service Employees International Union. A filibuster prevented the U.S. Senate from confirming Becker’s appointment. However, the president used his authority to declare a “recess” appointment, meaning Becker can serve only a shortened term on the board (until 2011).
The Senate confirmed the appointment of another union lawyer, Mark Pearce, to a term expiring in 2013, and also voted to confirm a Republican lawyer, Brian Hayes, to a term expiring in 2012. Remaining on the board are Liebman, another former union attorney, and Schaumber, whose term is scheduled to expire this month.
As a result of the new appointments, the board is now controlled by a new majority of former union attorneys who are expected to tilt the balance of NLRB decision-making in favor of unions. In addition, the president will have the opportunity to appoint a new general counsel of the board, who will be chiefly responsible for bringing unfair labor practice complaints before the NLRB. The current acting general counsel is a career employee named Lafe Solomon.
Unresolved Questions
Lacking instructions from the Supreme Court, one of the first acts of the newly constituted NLRB was deciding how to handle the several hundred cases potentially affected by the
New Process Steel v. NLRB ruling. On July 1, the board announced that 96 cases pending in the appeals courts would be reconsidered by three-member panels of the board, each of which would include the original two members (Liebman and Schaumber) who had decided the cases. The board left unresolved the question of whether any other cases would be reconsidered if the parties had not previously appealed them.
It remains uncertain as to how many previous NLRB rulings—on issues such as union organizing, picketing and collective bargaining—will be changed by the new board majority. Open shop construction contractors need to closely monitor developments at the NLRB, and are encouraged to call upon Associated Builders and Contractors as a resource.
Read ABC's Newsline update: NLRB Issues Decisions on Four Reopened Cases; Opens Case Database to Public