The Mess at the NLRB

      More than 500 NLRB decisions will have to be reopened because they were decided by only two members during a 27-month period when three of the five NLRB seats were empty.  So said a razor-thin Supreme Court ruling in June.

In limbo

     One of these cases, New Process Steel, LP v. NLRB, involved a steel processing plant in Butler, Indiana that unilaterally withdrew recognition from the International Association of Machinists. The two-member Board had ordered the employer to recognize the union, honor a contract negotiated in the fall of 2007 and make employees whole for any income lost while the employer failed to honor the contract.

Obstruction

    The Board had been down to 2 members owing to Republicans refusing to confirm Democrat-favored candidates. So in late March, President Obama made 2 recess appointments, acting under his power to fill vacancies that may occur during a Senate recess.

     NLRB appointees normally serve for 5 years. Obama’s recess appointments, Democrats Mark Pearce and Craig Becker, will only be able to serve until the end of 2011.   Becker, a lawyer for the AFL-CIO, encountered the fiercest objections from Republicans, who claimed he would push an aggressively pro-union agenda.

Ending the stalemate

    To resolve the stalemate, Obama gave the Senate a list of 60 long-delayed appointments, including Pearce, Becker and a Republican, Brian Hayes. The Senate confirmed Pearce and Hayes, with Democrats withdrawing Becker’s name because of yet another a filibuster threat.fight over Becker remains.

    The Indiana case and others will be remanded to the Board, and the now-four member Board will decide the appropriate means for further considering and resolving them.

   What the Senate will do on Becker or the 5th seat, remains to be seen.