Continuing vacancies at enforcement agencies slow administration's agenda in labor and employment law

Lexology
Venable LLP
Rebecca H. Ormsbee and James Edward Fagan, III USA
February 22 2010

The Obama Administration’s attempts to fill vacancies at the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC) have encountered serious opposition and setbacks, and this has led to corresponding delays in expected stepped-up enforcement efforts by these agencies. In particular, on February 9, 2010, U.S. Senate Democrats were unable to break a filibuster against the nomination of Craig Becker to the NLRB. Two Democrats, Senator Ben Nelson of Nebraska and Senator Blanche Lincoln of Arkansas, in addition to thirty-one Republicans voted “nay” on the cloture motion. Mr. Becker was President Obama’s nominee to occupy one of three vacancies that the President currently has the opportunity to fill at the NLRB. The President has also offered up a second Democratic nominee, Mark Pearce, as well as a Republican, Brian Hayes, to fill the other two open posts. Mr. Becker’s nomination to fill one of the open NLRB spots was an especially controversial one, primarily due to Becker’s strong ties to organized labor and his work as a lawyer for both the Service Employees International Union (SEIU) and the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO). There remains the possibility, however, that President Obama will use a recess appointment to place Mr. Becker and his fellow nominees on the NLRB on a short term basis.
Meanwhile, the NLRB continues to operate with only two of its five allotted members in place, which has led to a series of court challenges asserting that the Board lacks the necessary quorum to decide cases. A split in the circuits has developed on this question, and the U.S. Supreme Court granted a petition to decide the issue in the case of New Process Steel v. NLRB. A decision from the Court is expected this Spring.
Similar opposition and delay have left the EEOC in the same situation as the NLRB – only two of the Commission’s five allotted seats are currently filled. The President nominated Jacqueline Berrien as EEOC Chair, along with Chai Feldblum and Victoria Lipnic as Commissioners, but the Senate failed to confirm this package in 2009, and the nominations remain pending.
The net result of the delayed appointments at the NLRB and the EEOC is that anticipated significant changes in the enforcement of labor and employment regulations, once expected to take place in 2009, remain on hold for the time being. But the President will ultimately be able to name a majority of the members of both the NLRB and the EEOC, either through recess appointments or Senate confirmations, which will eventually bring about significant change in the enforcement efforts of both agencies. Employers should therefore remain alert to the agency appointment process and its implications for their workplaces.

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