Hobbled by controversy over the political appointees that run the NLRB, last week brought news that the agency may not be on the road to recovery anytime soon. In twin developments, occuring on the same day last week, actions by the courts and the Congress demonstrated the tough political road ahead for the NLRB.

In the courtroom, the U.S. Court of Appeals for the Third Circuit, which hears cases arising from Pennsylvania, New Jersey, and Delaware, confronted a recess appointment question similar to the one that the D.C. Circuit Court of Appeals addressed in Noel Canning. The court examined a case that former Member Craig Becker (D) participated in deciding. Member Becker began a recess appointment to the NLRB on March 27, 2010, prior to the recess appointments of Members Griffin and Block, which were at issue in Noel Canning. After a lengthy discussion analyzing the meaning of the term "recess," as used in the Constitution, the court in NLRB v. New Vista Nursing and Rehabilitation (pdf) held that the recess appointment of former Member Becker was unconstitutional.

In Congress, the Senate held a hearing on President Obama’s appointments to the NLRB. Currently, there are five nominations pending:

  • Chairman Pearce (D) (the only Senate-confirmed member currently serving on the NLRB) holds a term that expires in August 2013. The President has renominated him for another term, and to continue as Chairman.
  • Member Griffin (D) holds one of the recess appointments the D.C. Circuit found unconstitutional in Noel Canning.
  • Member Block (D) holds the other recess appointment at issue in Noel Canning.
  • Harry Johnson (R), recently nominated, currently a labor and employment attorney representing management at the Arent Fox firm.
  • Philip Miscimarra (R), recently nominated, currently a labor and employment attorney representing management at the Morgan, Lewis & Bockius firm. Mr. Miscimarra is also affiliated with the Center for Human Resources at the University of Pennsylvania’s Wharton Business School.

The Senate committee posted video to its website of the confirmation hearing, as well as the nominees prepared statements to the committee.

The most interesting development to come out of this hearing was Senator Lamar Alexander’s (R-Tenn.) position on the nominees. Senator Alexander is the ranking Republican member of the Senate committee. He announced that, because of the ruling in Noel Canning, he will not support the nominations of Members Griffin and Block and called on the President to nominate two other individuals. If the President did so, Senator Alexander "pledge[d]" to work towards their "speedy confirmation."

These twin developments are significant to labor professionals for at least five reasons:

  • Acting together, they increase the likelihood that there will be no action on the President’s nominees anytime soon. The Third Circuit’s decision strengthens the hand of those opposed to the current nominees. Senator Alexander’s position suggests that all five of the nominees will not be confirmed.
  • Expect calls by unions for the exercise of the "nuclear option" — that is, elimination of the filibuster rule in the Senate — to increase. Senate Majority Leader Harry Reid (D-Nv.) suggests that he may move in this direction in July.
  • While the additional circuit court decision against recess appointments is significant, do not expect that it will change the NLRB’s position. It will likely continue to operate on a "business as usual" basis.
  • For those hoping for a Republican majority on the NLRB during a Democratic administration, don’t hold your breath. While this could be the outcome if the Senate confirmed only Chairman Pearce and Messrs. Johnson and Miscimarra, that is unlikely.  Among other reasons, the NLRB’s majority has historically been from the political party of the President.
  • Finally, remember that, absent the "nuclear option," time is on the side of those who would prefer to see the NLRB "inoperable." Chairman Pearce’s term will end in just a few months. If Chairman Pearce’s term expires without the Senate acting on the pending nominations, the NLRB will fall to just two members. Whether those members are recess appointees or not, the NLRB will lack a quorum and be unable to act.