What The NLRB Recess Appointments Mean…

Peter Kirsanow, a former member of the National Labor Relations Board, offered this assessment of what we could see from the NLRB with the recess appointments of Craig Becker and Mark Pearce; both union lawyers:

The concern is that the Board, by issuing decisions and rules, could elevate union certification rates near levels anticipated under card check. The concern isn't overblown. Even without the passage of EFCA, the Board could significantly change the organizational landscape. For example, the Board could adopt rules recognizing minority unions, implement ‘quickie’ elections, grant unions greater access to employees for organizational purposes, restrict employer options during union campaigns and elections, recast supervisors' roles during election campaigns, leverage neutrality/card-check agreements by overturning certain Bush Board decisions, and increase the use of mail-ballot elections.

As you may be aware, there are currently three openings on the board. President Obama had put forth three nominees, two Democrats and a Republican. However, Obama chose to appoint just the two Democratic nominees over the weekend, meaning the Republican needs to be confirmed by the Democratic-controlled Senate. In a different blog post, Kirsanow stated that he believed Brian Hayes, the Republican nominee, is being used as leverage in the Senate to confirm all three as part of a package deal.

Under a recess appointment, Becker and Pearce can only serve through the end of 2011. The seats will be vacant once again at that point if they are not confirmed. If they are confirmed, however, they can serve around another three years.