According to Thomson Reuters:
Under challenge in federal courts, on Capitol Hill and even by litigants, the National Labor Relations Board faces uncertain prospects, a top board official has said.
Speaking at a conference on Friday, Acting General Counsel Lafe Solomon, the agency's top prosecutor and investigator, spoke of the ripple effect that a federal appeals court decision has had on the agency's official business.
"The NLRB is in an unprecedented place in its 78-year history," Solomon said at a conference on labor and employment law at New York University Law School. "We are being attacked judicially, politically and legislatively."
In January, the District of Columbia Circuit Court of Appeals ruled that the appointment of two board members was invalid, throwing past and future decisions by the board into doubt.
While a Senate committee in May approved President Barack Obama's nominees for all five board members, they still face uncertain prospects before the full Senate.
Senate Minority Leader Mitch McConnell has called the slate of candidates unacceptable, and Solomon noted that some senators have even criticized the very existence of the agency.
With the term of Chairman Mark Gaston Pearce expiring in August, the board would no longer have a quorum if the nominees were not approved.
"For the first time in (its) history there is a possibility of no board," Solomon said.
Meanwhile, litigants have raised the D.C. Circuit's decision in NLRB cases in every federal circuit, Solomon said. As of last Thursday, employers had also raised it in 188 unfair labor practices cases before the NLRB itself, as well as in 29 petitions regarding union elections.
Nevertheless, the board continues to conduct investigations, hold union elections and seek injunctions against possible unfair labor practices, he said.
"I don't want to leave you with the impression that post-Noel Canning the agency has ground to a halt," Solomon said, referring to the case decided by the D.C. Circuit, Noel Canning v. National Labor Relations Board.
The "vast majority" of employers are still agreeing to union elections overseen by the NLRB, and the agency is still experiencing a settlement rate exceeding 90 percent of its cases, he said.
"My firm belief is that, win, lose or draw, most employers would rather have their workplace disputes resolved by us than have them fester," he said.
Panelists on Friday discussed issues regarding the role of pay and benefits outside of the United States, as well as how pay disputes such as executive compensation are arbitrated or litigated. The conference commemorated the 75th anniversary of the Fair Labor Standards Act, the Depression-era law governing minimum wage requirements in the U.S.
In Noel Canning, the court held that two of Obama's appointments to the board were not valid because the Senate was not properly in recess when he made the appointments without Senate confirmation. The administration has asked the Supreme Court to consider an appeal.
In January 2013, the Federalist Society producted a podcast on the Noel Canning decision. Participating were:
Dr. John C. Eastman, Chapman University School of Law
Mr. Noel J. Francisco, Jones Day
Prof. Todd J. Zywicki, George Mason University School of Law
Moderator: Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society
You can listen to the podcast by clicking here.