Earlier this week, President Obama nominated two Democrats, Sharon Block and Richard Griffin, to serve as members of the NLRB. Ms. Block currently works at the U.S. Department of Labor, an agency which has attracted attention over its controversial proposal to modify the rules governing "persuaders" in labor organizing campaigns. Mr. Griffin serves as General Counsel for the International Union of Operating Engineers. Additional information about Ms. Block and Mr. Griffin can be found in the NLRB’s press release regarding their nominations.
The nominations come at an interesting time for the NLRB. Currently, there are only three members on the NLRB. One of those members, Craig Becker (D), holds a recess appointment that will expire at the end of the year. If the Senate does not act on these nominations, or the nomination of Terence Flynn (R), whose nomination has been pending for months, the NLRB will fall to two members. It will then no longer be able to issue decisions or new administrative rules.
Labor law professionals should not expect quick action on these nominations. Sen. Lindsey Graham (R-S.C.) declared, even before the President announced his nominations, that he would continue to place a "hold" on any nominees to the NLRB. According to his press release: "I will continue to block all nominations to the NLRB until we get satisfactory answers regarding their role in [the decision to issue a complaint against The Boeing Company’s decision to open a new plant in South Carolina]. Given its recent actions, the NLRB as inoperable could be considered progress."
While the President could make recess appointments to the NLRB, like he did with Member Becker, the House has taken steps to remain in session. Reportedly, these steps will prevent the Senate from going into full recess, preventing recess appointments from being made.
Issues awaiting NLRB action, and that could be delayed if the NLRB were unable to act, range from a proposed rule that would speed up the union election process to a decision on a case with potentially significant impact on employer solicitation and distribution rules.