• Significant Changes Afoot with Respect to the NLRB
  • July 2, 2010 | Author: Richard L. Hackman
  • Law Firm: Barley Snyder LLC - York Office
  • Former union attorneys Craig Becker and Mark Pearce have been sworn into office to begin their recess appointments as members of the National Labor Relations Board (NLRB). This ended an approximately two-year period during which the five-member NLRB operated with just two members. These appointments also created a Democratic majority on the board for the first time since December 2001. Notably, President Obama failed to give a recess appointment to Republican appointee Brian Hayes, leaving the NLRB one member short of its five members.
     
    Becker was an associate general counsel for the Service Employees International Union, and AFL-CIO staff counsel since 2004. Pearce was an attorney with a New York law firm, and represented unions and employees in labor and discrimination cases.
     
    As a result of giving Democratic appointees an edge on the NLRB, these recess appointments could have a dramatic impact on labor law. Several recent and notable NLRB rulings could be overturned by the appointments of Becker and Pearce. Specifically at issue may be the 2007 Register Guard decision in which the Board held that an e-mail system is employer property from which union organizing activities may be excluded, and the 2006 Oakwood Health Care decision, which broadened the definition of “supervisor” to include supervisory duties to “assign” and “responsibly to direct” workers.

    These appointments will expire when the Senate ends its 2011 session. However, should the Senate confirm the nominations of Becker and Pearce in exchange for getting Hayes on board, Becker and Pearce’s terms would be extended by approximately three more years. Moreover, the term of Republican appointee Peter C. Schaumber will also expire in August 2010, giving the President another vacancy to fill and another opportunity to make the NLRB an all Obama board. Finally, it is also important to note that the term of NLRB General Counsel Ron Meisburg (R) expires this summer. Given the general counsel’s authority to enforce NLRB rulings, an Obama appointment to this position is also likely to have an immediate impact on daily labor management relations.