The D.C. Circuit has issued an opinion finding that the recess appointments to the NLRB by President Obama were invalid. The response of Chairman Pearce reflects the intention of the current Board to carry on with business as usual. Chairman Pearce's term expires on August 27, 2013. Member Hayes' term expired in December leaving the Board with three Democratic members. Members Block and Griffin are the two remaining recess members. If the D. C. Circuit's decision stands, the Board has one member.
So what will business as usual be? With three Democratic Board members, the chances of employers prevailing are, to say the least, not good at the Board level. Employers will continue to challenge the Board decisions on the basis of the D.C. court's decision. The Board can continue to issue cases on the assumption that the recess appointments will be upheld in the Supreme Court. The Board could also hold cases until the legal challenge has been resolved. A solution which is certainly against all odds is that the Democrats and Republicans agree on a slate of appointments which reflects the 3-2 majority of Democratic members. Not very likely.
For employers, uncertainty of the status of the Board members only adds to the confusion which seems to be a way of life in dealing with the NLRB. This much is certain; there is a Democratic President who appoints Board members. Until the next Presidential election, the Board will have a Democratic majority. The decisions of the Obama Board, whoever they are,will be consistent with, if not expanding, upon decisions of Democratic Boards. When an employer considers an action that may result in an unfair labor practice charge, the employer has to recognize that it ultimately will be reviewed by an Obama Board. Recent pronouncements concerning investigations, social media, and arbitration cannot be ignored. Those battles, if they are to be fought, will be done so at the court of appeals. In the meantime, the reality of a Democratic Board is not going to change. Unfortunately, the reality of gridlock and confusion at the Board is also unlikely to change.