Will President Obama's Recent NLRB Appointments Clear Backlog Of Cases?

The National Labor Relations Board is a five member body of presidential appointees. However, for approximately the past 26 months, the NLRB has operated with just two sitting board members, Republican Peter Schaumber and Democrat Wilma Liebman. This has resulted in a backlog of unresolved cases pending before the NLRB and in a case pending before the United States Supreme Court calling for the Supreme Court to decide whether the National Labor Relations Act permits the NLRB to act when there are only two sitting members of the NLRB, New Process Steel v. National Labor Relations Board, in which the Supreme Court heard oral arguments on March 23, 2010.

As we previously reported here, on Saturday, March 27, 2010, President Obama made two recess appointments to the NLRB, appointing Craig Becker who, as we reported here, failed to obtain Senate confirmation largely on account of his close union ties, and Mark Pearce, another union side labor lawyer. So called "recess appointments" made while the Congress is in recess enable the White House and its nominees to postpone until a later date when the Congress is in session Senate confirmation of the appointees. As presently constituted, the NLRB now how has three sitting Democrats, one sitting Republican, and one seat still vacant.

In an April 12, 2010 article entitled, "Labor Cases Affected by Bottleneck May Speed Up," The Press-Enterprise reports that the backlog of cases pending before the NLRB, reportedly numbering approximately 250, is expected to ease with the two new "recess appointments." The Press-Enterprise reports also that "Because Obama is a Democrat, it is expected the new board will lean toward labor."

Among those interviewed for that article was AALRR partner Thomas A. Lenz who served as a staff attorney with the NLRB before joining AALRR. Tom told the Press-Enterprise "[t]he NLRB is very prone to political sway." Tom further explained the NLRB board members "don't rely on pages and pages of regulations like the Labor Department. Rules vacillate according to politics. What was law in the Clinton administration is not law during the Bush administration."

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