NLRB Recess Appointments

As has been extensively reported in a number of news outlets, Pres. Obama used a process known as a "recess appointment" to place on the NLRB two of his three nominees. The first, and most controversial, is Craig Becker, an attorney who works for the SEIU. The second, and significantly less controversial, is Mark Pearce. Both of these appointees are Democrats. Pres. Obama’s Republican appointee, Brian Hayes, was not appointed through the recess process.

That Pres. Obama chose the recess process isn’t terribly surprising. The NLRB’s website tracks all of the various NLRB Members since the NLRB started operations in 1935. Reviewing the list, one finds a number of recess appointments by previous presidents, including Presidents Carter, Reagan, Bush (41), Clinton, and Bush (43). Most recently, Pres. Bush appointed mainly Republicans to the NLRB, but also made a recess appointment of Dennis Walsh, a Democrat, in 2006.

The troubling part about the political football that the NLRB has become is the lack of predictability for employers. Decisions that are made during one administration are the prime candidates for reversal under the next administration. Indeed, the U.S. Supreme Court has even been called upon to determine whether the NLRB can issue decisions with only two members, as it has done since before Pres. Obama announced his nominees to the Board. Thus, the reality that labor professionals confront is one of unpredictability. We will see where the new NLRB takes the labor law, but many signs suggest that it will not be a very scenic trip for employers.