NLRB nominee block could cause headaches

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By Kimberly Atkins
Dolan Media Newswires

BOSTON — For the National Labor Relations Board, next year could be déjà vu all over again.

Just last year, the U.S. Supreme Court ruled the normally five-member NLRB, which is responsible for enforcing federal labor laws, acted without authority when it handed down nearly 600 decisions with only two active members.

Today, the NLRB has four members. But if members of the Senate, angered over recent NLRB actions, block President Barack Obama’s attempts to fill vacancies, the board could again drop to two members, rendering it unable to issue decisions.

The terms of two of the four members of the NLRB are set to expire soon: Chairman Wilma Liebman’s term expires at the end of August, and member Craig Becker’s term expires Dec. 16.

Recent NLRB actions have drawn vocal criticism from Republican lawmakers, making very real the possibility of a block on nominees.

And given the recent political rancor over NLRB actions, an attempt to block Obama’s nominees — and strip the agency of much of its power — is more than a remote possibility.

The controversy flared after the NLRB’s general counsel brought what could be the largest labor lawsuit this century against Boeing Co., alleging its decision to shift operations from a union plant to a nonunion shop in another state constituted an unfair labor practice.

The Republican-controlled House Committee on Oversight and Government Relations’ chairman, Rep. Darrell E. Issa, R-Calif., called the NLRB’s lawsuit “an unacceptable course of action” that “exceeded their statutory authority to pursue a politically driven agenda.”

But in his testimony at the hearing, NLRB general counsel Lafe Solomon defended the Boeing suit, saying that “in the absence of a mutually acceptable settlement … both Boeing and the Machinists Union have a legal right to present their evidence and arguments in a trial and to have those issues be decided by the Board and federal courts.”

Soon after, the agency announced a proposed rule to speed up the timeframe for unionization elections and postpone litigation over voter eligibility until after the election, drawing more ire from congressional Republicans and business groups such as the U.S. Chamber of Commerce, which is considering seeking an injunction against the agency should the rule be finalized.

Given these controversies, labor lawyers say they are preparing for Senate Republicans to push back on NLRB nominees.

“I think that Republicans and certainly the far right would like nothing better than to shut the NLRB down by blocking any attempt at filling those vacancies,” said William Hannum, a partner at the management-side labor and employment firm Schwartz Hannum in Andover, Mass.

If the NLRB’s membership falls below a quorum, it won’t halt most labor litigation. Agency hearing officers and regional directors at NLRB regional offices will still adjudicate disputes. But appeals of those rulings will sit in limbo until the NLRB has the authority to rule on them.

Lawyers are split on who would be hurt more by a potential NLRB shutdown — unions or management.

“I think the unions are probably going to come out ahead” in the event the board loses its quorum, Hannum said.

But the union won’t always win, he said, because in “a lot of cases, the employer might be happy to sit around and wait to see if the board makes them post a notice.”

Lawyers are not expecting a compromise between the Obama administration and lawmakers to get the vacancies filled quickly.

“If they are willing to shut the (Federal Aviation Administration) down and lose $30 million a day (in taxes), then forget it,” Hannum said. “The board doesn’t stand a chance.”