NLRB Up To Full Strength: Ready Or Not, Change Is Coming

At full strength for the first time in three years, the National Labor Relations Board is poised to overturn pro employer "Bush Board" rulings and tackle a backlog of several hundred cases that the Supreme Court recently held were improperly decided. In New Process Steel, LP v. NLRB, Case No. 08-1457, the United States Supreme Court ruled that all of the nearly 600 decisions rendered by the Board between January 2008 and March 2010 were unauthorized because the five member Board had only two members during that 27 month period. And earlier this week, while pundits were still speculating on the impact of the Supreme Court's decision, the Senate confirmed the nominations of two members, Republican Brian Hayes and Democrat Mark Pearce, for full terms on the Board. These confirmations, together with the earlier recess appointment of Democrat Craig Becker, bring the Board to its full complement of five for the first time since 2007.

The current composition of the Board is as follows:

• Chairman Wilma Liebman (Democrat—confirmed through August 2011)
• Member Peter Schaumber (Republican—confirmed through August 2010)
• Member Mark Pearce (Democrat—confirmed through December 2013)
• Member Brian Hayes (Republican—confirmed through December 2012)
• Member Craig Becker (Democrat—serving a recess appointment that expires at the end of 2011)

The combination of these events means that the new Board will have a wealth of remanded cases to make or reverse policy, if it wishes, in addition to thorny cases currently before the Board and cases that will come to it through more traditional litigation routes. Most of the cases invalidated by the Supreme Court decision were noncontroversial, but in a number of cases, precedent (especially employer-friendly precedent from the "Bush Board") may be questioned and potentially overturned.

Adding to the uncertainty facing employers is the fact that President Obama will soon nominate a new General Counsel for the Board. This powerful position is currently being filled on an interim basis by a longtime Board employee, Lafe Solomon, but speculation is rampant as to whom the president will nominate to fill the position for a full term. The General Counsel has vast discretion in influencing which cases come before the Board and when. It is likely that the General Counsel will exercise this discretion to tee up cases for the Board that will result in reconsideration and reversal of many Bush-era precedents that are unpopular with organized labor.

Employers need to be prepared for unwelcome changes in national labor law, and be ready for increased union-organizing activity. Every employer should assess its vulnerability and implement "best practices" to minimize the chances of becoming the target of a union campaign. Such an assessment should include updating employee handbooks and policies to ensure compliance with applicable labor laws. 

Related Areas
Employment Law and Labor Relations