On March 27, President Barack Obama announced his intent to use his constitutional power to make appointments while Congress is in recess to appoint Democrat Craig Becker to the National Labor Relations Board (NLRB). This is the first time the President has used recess appointments.
Becker, a union attorney, has been a controversial nominee since he was first nominated, and in February, Senate Republicans used a filibuster to block his nomination. The business community and Republicans have been strongly opposed to his nomination, mainly because he has become associated with the Employee Free Choice Act (EFCA), a bill that would make it much easier for employees to form labor unions. Employer groups and Republicans have suggested that if Becker were nominated to the NLRB, he and a Democratic majority on the Board could implement provisions of EFCA, even if Congress failed to pass the bill.
The President also announced his intent to appoint Mark Pearce (a Democrat) to the NLRB, but he didn’t appoint the Republican nominee, Brian Hayes. The NLRB has been operating with only two members (one Democrat and one Republican), and the two-member Board has issued over 500 decisions. Parties who were unhappy with those decisions challenged their constitutionality in federal courts, and the U.S. Supreme Court is expected to rule on the issue this year.
As a result of the new appointments, the NLRB will have a Democratic majority. Such a reconfigured Board could have a significant effect on labor law and policy by reversing NLRB decisions issued under the last administration and setting new precedent. A representative of the U.S. Chamber of Commerce addressed Becker’s recess appointment by noting, “The business community should be on red alert for radical changes that could significantly impair the ability of America’s job creators to compete.”
HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including labor unions and organizing