Analysis: Controversy Surrounding Obama’s NLRB Recess Appointees

As an employer, you may be perplexed by the flap over President Obama’s recess appointments to the National Labor Relations Board (NLRB) and concerned about what it all means for business.

Your confusion is justified; the situation remains fluid and no one knows just where the dust will settle. This posting provides an overview of the current state of affairs.

The NLRB is a five-member board typically populated by three members from the president’s party and two from the opposing party. The board now has only three members, all Democrats appointed by President Obama.

Chairman Mark Gaston Pearce was confirmed by the Senate on June 22, 2010, to a term ending on August 27, 2013.  The other two, Sharon Block and Richard F. Griffin, Jr., were appointed by President Obama in January of 2012, without Senate approval. Their status is in limbo because the of the D.C. Circuit’s recent ruling in Canning v. NLRB, which held that President Obama improperly placed those members using his recess appointments power when the Senate was technically in session. The Administration says it will appeal that ruling to the Supreme Court.

Meanwhile, President Obama this year has nominated five members to the board. On the Democratic side, those nominees include the two recess appointees — whom Senate Republicans have vowed not to confirm — and Pearce, who has already been confirmed once and will likely sail through again.

In addition, Obama this month nominated two Republicans, Harry I. Johnson and Philip A. Miscimarra. Both are management-side labor lawyers.

So here are the possible scenarios. All the nominees are confirmed, which is unlikely, or if the Supreme Court allows Block and Griffin to stay on the board, the currently seated NLRB Democrats would retain their voting majority. This would mean the NLRB could be expected to continue its current direction of expanding employee rights by making it easier for workers to unionize.

Another possibility is that the Senate confirms the Republicans, Johnson and Miscimarra, and the Supreme Court invalidates the Democratic recess appointees. This dynamic would lead to a 2:1 split in favor of the Republicans, and the unusual situation of the party out of power controlling the NLRB. Remember, it is unlikely that the Senate will confirm Block and Griffin.

A Republican majority on the NLRB would likely result in more employer-friendly decisions and a halt to the board’s current direction of expanding workers’ rights.

Regardless of which party dominates the NLRB going forward, the validity of hundreds of mostly pro-employee NLRB rulings would be called into question if the Supreme Court affirms the Canning decision. At this point we will not venture to predict how the nation’s highest court will rule.