Since December of 2007, the National Labor Relations Board has operated with a complement of only two members, well under its statutory composition which authorizes five members. While the two member Board has continued to render decisions and orders, there have been numerous challenges to the Board’s authority to adjudicate issues under its current composition.
The majority of the United States Courts of Appeals which have considered the issue have upheld the NLRB’s authority to issue two member decisions. Nevertheless, the United States Supreme Court has granted a petition for a writ of certiorari in NLRB v. New Process Steel to consider the legality of the Board’s adjudication of issues with only a two member panel. If the Supreme Court finds that it is unlawful for the NLRB to render decisions with only two members, hundreds of Board decisions could be vacated.
In the mean time, President Obama nominated Craig Becker, Associate General Counsel for the Service Employees International Union, and Mark Pearce, a New York union-side labor lawyer, in April of 2009. Rather than act on the President’s nominations and allow to Board to function with a complement of members that could remove any taint regarding its statutory authority to act, the United States Senate has failed to do anything. Indeed, Senator John McCain has been the primary culprit in the stall to avoid filling NLRB seats.
It’s bad enough that the Board has little authority as it is to offer real remedies to the victims of employer unfair labor practices. The current situation however is simply unacceptable.
It’s time the Senate acted. The time is now.