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Labor Relations Insight

by Phil Wilson

Can We Confirm a Board Already?

This is getting pretty frustrating.

Believe me, I understand that the labor relations tail is never going to wag the dog of any new administration. And to be fair, it took President Obama more than a year to get his first two NLRB seats filled (with the controversial recess appointments of Craig Becker and Mark Pearce). But still.

As far as labor law goes we are currently in the 9th year of the Obama Board. When Obama came into office there was no urgency to fill Board seats because the Board only had two members, one Republican and one Democrat, so effectively everything was on hold. But today we have a Democrat majority Board, with a Democrat General Counsel, that continue to issue decisions and push big labor’s agenda.

The latest projections suggest a full, Republican majority Board in place “by August recess.” Which is just in time for Phil Miscimarra’s seat to expire around 3 months later. Hopefully he will be re-nominated and accept, but there is a reasonable possibility that the first year of the Trump administration will end up with a split NLRB and without a General Counsel.  And that is a crime.

Sisyphus by Titian, 1549

Whenever a Republican majority Board is finally seated they have the Sisyphean task of reversing nearly a decade of aggressively pro-union NLRB decisions. That takes time. It’s not like the NLRB just waves a magic wand and labor law goes back to where it was for most of the 75 years before. Every single issue must be re-litigated and brought up before the Board for consideration. And the employees in the agency – the “deep Board” so to speak – know how to slow play cases that they don’t want changed.

The Republican Board members can push for decisions to get made, but the Democrat members (and even some of the staffers for Republican members) are going to go into the four-corners defense. They can sit on opinions, look for procedural ways to throw refrigerators on the tracks, and even encourage cases to go away without a Board decision.

Bottom line: If you are a bureaucrat living in a world where it is a possibility that the party in power might not be around that long, your best strategy is sloth. And that’s something bureaucrats can handle.

We’ve finally got two terrific nominees to get the Board up to full strength (although I wish this one was heading to Washington too). I am begging the Senate to push these nominations through right away. And the administration needs to get the next General Counsel (and hopefully a re-nomination of Miscimarra) off to the Senate as well. There is no time to lose.

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