Will the Supreme Court Force a Massive NLRB Do-Over?

Anyone who doubts that partisan divisions produce government paralysis need look no further than the National Labor Relations Board. During the Bush years, Senate Democrats succeeded in blocking GOP–backed nominees to fill seats at the five-member NLRB. Now that President Barack Obama has offered his own nominees, Senate Republicans have returned the favor. The result: Since January 2008 (even longer than the Equal Employment Opportunity Commission), the NLRB has been operating with just two board members, agency chair Wilma Liebman, a Democratic appointee, and Republican Peter Schaumber. During that time, the NLRB has generally avoided controversial matters that could set precedent. That hasn’t kept the undermanned agency’s authority from being called into question. In late March the U.S. Supreme Court heard arguments in Process Steel v. The National Labor Relations Board, a case that could nullify every decision made by the two-member board. “This could literally wipe out hundreds of cases,” says James Bucking, head of Foley Hoag’s labor and employment group, who notes that the NLRB would need to reconsider many of the cases at issue once it has a quorum.

Of the stalled Obama nominees, only Craig Becker, a staff attorney at both the AFL–CIO and Service Employees International Union—has faced significant opposition. Becker’s critics have accused him of wanting to use the NLRB’s rule-making power to circumvent existing labor laws; his backers say that’s ludicrous. In March, Obama bypassed that opposition by using a recess appointment to install Becker and a second nominee, Mark Pearce, on the NLRB board. With two new members, the agency can soon begin acting on significant cases.