• President Announces Plan to Nominate Two NLRB Members; Board Publishes Procedural Rule for Periods When it Lacks Quorum
  • December 16, 2011
  • Law Firm: Ford Harrison LLP - Atlanta Office
  • Executive Summary:  Despite Republican threats to block any appointments to the National Labor Relations Board (NLRB), on December 14, 2011, President Obama announced he intends to nominate Sharon Block and Richard Griffin as Board members.

    Ms. Block is currently the Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor and previously served as Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for Senator Edward M. Kennedy.  Ms. Block has also served at the National Labor Relations Board as senior attorney to Chairman Robert Battista and as an attorney in the Board's appellate court branch.

    Mr Griffin is currently the General Counsel for International Union of Operating Engineers (IUOE).  He also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee and has held a number of leadership positions with IUOE.  Additionally, Mr. Griffin has served as a member of the board of trustees of the IUOE's central pension fund and as a Counsel to NLRB Board Members.

    The five-member Board currently has two vacancies.  The recess appointment of controversial Board member Craig Baker will expire at the end of December, leaving the Board with only two members.[1]  In June 2010, the U.S. Supreme Court held in New Process Steel v. National Labor Relations Board that the Board cannot make decisions with only two members.[2]

    The nominations come a week after Acting General Counsel Lafe Solomon announced that the Board approved the withdrawal of charges filed by IAM against the Boeing Company based on the company's decision to build a new plant in South Carolina.  Some Republican senators, feeling that the Board overstepped its authority in the Boeing case, have pledged to block any further nominations to the Board to preclude any additional key decisions by the Board during the remainder of the President's time in office.  While the President can make recess appointments, as he did with Mr. Becker, recently House Republicans have convened brief, pro forma sessions when Congress is away to prevent the Senate from going into full recess.  This practice may continue, which would preclude any recess appointments by the President.

    NLRB Adopts Special Procedural Rules for Periods When the Board Lacks a Quorum of Members

    In light of the potential loss of a third Board member, the NLRB has published a final set of rules amending 29 CFR Part 102, "Special Procedural Rules Governing Periods When the National Labor Relations Board Lacks a Quorum of Members," available at http://www.ofr.gov/OFRUpload/OFRData/2011-32085&under;PI.pdf.  The rules were adopted to facilitate, as much as possible, the normal functioning of the Board when it lacks a quorum.  Under the rules, certain motions and appeals will be referred to other offices of the Board, while preserving the right to ultimate review by the Board when a quorum is restored.  Specifically:

    • Motions for Summary Judgment, Motions for Default Judgment, Motions for Dismissal of Complaints and Requests for Special Permission to Appeal will be referred to the Chief Administrative Law Judge in Washington D.C.  Such rulings by the Chief Administrative Law Judge shall not be appealed directly to the Board but shall be considered by the Board in reviewing the record "if exception to the ruling or order is included in the statement of exceptions filed with the Board pursuant to § 102.46."
    • Administrative and procedural requests will be referred to the Executive Secretary for ruling.  Such rulings shall not be appealed directly to the Board, but shall be considered by the Board if such matters are raised by a party in its requests for review or exceptions. 

    Employers' Bottom Line:

    Even if the Board's numbers fall below quorum, this does not prevent rules already adopted by the Board from taking effect.  For example, the requirement that covered employers post a Notice of Employee Rights will still take effect January 31, 2012.  Ford & Harrison attorneys and F&H Solutions Group Consultants can provide you with training and assistance in addressing the issues that will likely arise from this posting requirement, including how to answer the inevitable employee questions about the poster.

    [1] For more information regarding Becker's background and the concerns raised by his appointment, please see our prior Legal Alert, EFCA by Fiat? What a Becker Confirmation Could Mean for Employers.

    [2] Please see our prior Legal Alert, Supreme Court Holds that Two-Member NLRB Lacked Authority to Issue Rulings, for more information on this decision.