The NLRB confirmation process is broken and has been for years.

When President Bush was in office, the Democrats effectively blocked the selections to the Board.  As a result, President Bush had to use recess appointments to fill the vacancies.  Back in 2010, when faced with opposition from the Republicans, President Obama did the same thing.

In 2011, President Obama has continued to face opposition to his nominees.   So yesterday, he made three new recess appointments to the NLRB.  (Labor Relations Counsel has full details on the selections here and there are other posts with background here.)  This will bring the board to five members for the first time in years.

Now once again, political pundits are up in arms about how this is an unprecedented power grab and on and on.

This hyperbole may (or may not) make for good political theater (and perhaps some of it is true) , but for employers, it’s just more background noise.

Back in 2010, I argued that recess appointments could be “good” for business because they would bring some more certainty to the law.  Yes, existing precedents would be overturned under a new NLRB — but that happens each and every political cycle.  (A better solution would be a tribunal that didn’t shift with each presidential campaign, but that’s an issue for another day).

The best quote back then was from John Phillips, who used to write a great blog.  He said then, in words worth repeating now:

Everyone expected this administration to be pro-labor and to have a pro-labor NLRB. It seems to me, therefore, that all the hand-wringing over[the nominee] is a bit overdone. I represent employers. I believe employer-employee relations are handled better without a union. I also believe, however, that when an employer ends up with a union, it’s deserved 99% of the time. An employer will have much more to do with whether a labor union gets its foot in the door by the way employees are treated than by anything [the nominee] does.

The same holds true now.  What the recess appointments will ultimately bring for employers is a bit more certainty.  It’s difficult enough for HR representatives to keep up with the rules but not knowing what the rules are to begin with makes planning nearly impossible.  That’s not to say that employers will “like” every rule; I’m certain that they won’t.  But a government agency that is in limbo or without leadership, just creates more questions than answers for employers.

  • OMG – I read something online that isn’t mindlessly partisan and ideological.

    A huge point is overlooked in debates about the Board. The vast majority of Board cases (I mean cases that reach the Board on appeal from hearing officers and ALJs) are low salience cases and not particularly politicized. I worked at the Board for 6 years, as counsel to Liebman, and the average case doesn’t bring out the partisanship. It is only in the high profile cases and issues that both sides get marching orders from their principals and the ideology comes out.

    The notion that having the Board in limbo or not working helps employers results from an excessive focus on a handful of cases. A Board that is not working or in limbo may not make controversial decisions on issues like salting, but it also doesn’t make hundreds and hundreds of run of the mill ULP and R case decisions. In nearly all of those cases, the Board applies well established law to the facts of particular cases or elections. There isn’t often a broad discussion of what the law should be.

    Beyond that, employers and their counsels are pretty good at working existing law and regulations, even if it isn’t what their ideal. Cases can be distinguished on the facts, procedures can be worked, bargaining unit arguments, challenges to ballots, and objections can be made.

  • Ahwilde

    Like most people in Connecticut you are missing the point. There was not recess. Therefore there can be no recess appointments. Next he will be making appointments during the lunch hour.