Senate fills Labor Board as Supreme Court clouds cases

Senate confirmation of Brian Hayes and Mark Pearce, who President Obama nominated in July 2009, brings the NLRB to full five-member strength for the first time since December 2007. A confirmation vote had been stalled over partisan disputes centering on a third nominee, Craig Becker. An entrenched labor advocate and former AFL-CIO and Service Employees International Union associate general counsel, Becker was recess-appointed in late-March to a term expiring December 2011. Pearce was likewise appointed, although his Senate confirmation covers an April 2010–August 2013 term. Hayes, currently Republican Labor Policy Director for the U.S. Senate Committee on Health, Education, Labor and Pensions, fills a term expiring December 2012.

The NLRB comprises three members of the administration party, two of the minority party. Hayes joins fellow Republican Peter Schaumber, while Pearce and Becker join fellow Democrat and NLRB Chairman Wilma Liebman. She and Schaumber have issued about 600 decisions as a two-member board, although a June 17 Supreme Court ruling holds that the agency does not have authority to act with fewer than three board members. The ruling casts doubt on the Liebman/Schaumber decisions, according to labor law specialist Ballard Spahr. Employers subject to January 1, 2008–March 27, 2010 decisions, the firm notes, should assess cases to see if a “re-review” is warranted.

Among re-review candidates is a case involving the Indianapolis ready mixed operations of Ohio-based Spurlino Materials. A March 2009 Liebman/Schaumber decision ordered the producer to compensate drivers for lost wages and adhere to collective bargaining practices with drivers and batch operators who were part of a Teamsters-affiliated, certified unit.

600 decisions possibly down the drain.