Wednesday, February 3, 2010

NLRB Already Here? Returns? In the Distant Future?

What is the status of the National Labor Relations Board and why is it so hard to figure out?

Is it Already Here?

Section 3(b) of the NLRA provides that:
"The Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise. . . . A vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board, and three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group designated pursuant to the first sentence hereof."
So what's the problem? Currently, the NLRB only has two members. Is that enough for the NLRB to hear labor disputes and issue orders? The Seventh Circuit thinks so, as held in New Process Steel v. NLRB.

Not so fast though! The D.C. Circuit held the other way in Laurel Baye Healthcare of Lake Lanier v. NLRB.

Returns?

Maybe the NLRB's return is imminent. After all, President Obama has nominated Craig Becker who appeared before a Congressional committee (Health, Education, Labor, and Pensions -HELP) yesterday (video of hearing). So no matter what the number needed for a quorum, the NLRB's about to return, right? Not so fast!

In the Distant Future?

Despite his pledges of impartiality before a congressional committee, some Republicans remain skeptical. Becker holds SEIU and AFL-CIO credentials (associate general counsel) and some Senate members fear he will be too pro-labor. In breaking news today, it appears Scott Brown will be certified as Massachusetts' new senator as early as Thursday, February 4, 2010. Some reports are that "labor is steaming" over what they assume will be one more vote to block Becker.

Another option? One of the other nominees (Brian Hayes or Mark Pearce) will get confirmed.

Another option? New Process Steel v. NLRB was granted certiorari, meaning the Supreme Court will hear the case and presumably decide the issue, but that will take awhile...