Labor Board Openings Are a Business Concern, Too
At first blush, the three vacancies on the five-member National Labor Relations Board would seem to be a good thing for business. When President Obama's two Democratic choices are confirmed, it will shift the balance of power and probably swing several pending decisions to the side of workers. But that's a short-sighted view: The current state of confusion is no boon to business.
The NLRB has had only two board members for well over a year -- since the Democratic Senate decided to pin its hopes on a new president rather than confirm another Bush nominee. But now the chickens are coming home to roost, so to speak.
Since early 2008, the two existing board members, one Democrat and one Republican, have acted under a legal maneuver blessed by the Bush Justice Department that allowed them to issue hundreds of decisions in less controversial cases on which they agreed. But on May 1, the U.S. Court of Appeals in Washington ruled that a decision by the two members doesn't count because the board lacked a quorum. On the same day, a federal appellate court in Chicago took the opposite view, holding that a separate decision taken by the two members was appropriate and binding.
With the courts at odds, confusion reigns. Dozens of companies are going to court to challenge other rulings, but the two existing NLRB members say they will continue to issue rulings when they agree. The Washington court gave the board an easy out, saying that once a quorum is present, the board can reaffirm all of the rulings in question. But there's the rub.
Obama has announced his intention to nominate two members -- Craig Becker, the associate general counsel to the Service Employees International Union and Mark Pearce, who has teaches labor law -- but has yet to submit the paperwork. When he does, it will take several months to win confirmation. In the meantime, the Board is in limbo, as are the companies and workers who need answers.
There is another option -- a recess appointment this week. But that's the kind of move that Obama is likely to be reluctant to take because of the anger it arouses among the opposition party. Still, it may be the lesser of the evils facing the NLRB and those who depend on it.