NLRB Appointments

The National Labor Relations Board seats are staggered so that, every year, one of the Board Member seat’s term expires, regardless of when the incumbent member was appointed.  Thus, unless Congress confirms at least one new Board member every year, the five-member Board will have vacancies.  Indeed, as it turns out, the Board rarely operates with all five Members—only 40 percent of the time since 1980—and, of the 36 Board members who have served in the past 30 years, almost half (17) have served all or part of their term as a recess appointment.  This trend is a direct result of the fact that the Board has become so politicized.  Nominations invariably draw strong opposition from stakeholders on either side, leading to delays in confirmation.  In recent years, confirmation has become almost an impossibility as a President’s term draws to a close and the opposition party wants to ensure the maximum number of available seats for the incoming President to appoint if they prevail in the election.  This effectively led to an unprecedented shutdown of the Board In the final year of President Bush’s second term as well as the first year of President Obama’s first term.  Only two of the Board’s five seats were filled during that period, leading the U.S. Supreme Court to nullify every decision issued during that time, finding that a three-member quorum is essential for the Board to issues decisions.  In President Bush’s case, the Board declined to two members because the Democratic Congress shut off his ability to make recess appointments by holding pro forma sessions.  President Obama ignored the precedents in this area and made the recess appointments anyway, ensuring a five-member Board through the remainder of his term, though the legality of their decisions will be contested, creating further uncertainty for employers over the state of the law.  Regardless of what happens with the challenges to the recent Obama appointments, the prevalence of recess appointments, whether legitimate or not, has undermined the legitimacy and credibility of the Board’s decisions over the years.  HR Policy Association would be willing to engage with other stakeholders in seeking a consensus on how the appointments process could be fixed, preferably as part of an overhaul of the structure and procedures at the Board to improve the efficiency and effectiveness of the administration and enforcement of the law.