(corrections as of 9/7/2007)

As we celebrate Labor Day 2007, the nation’s primary labor policymaking and enforcement agency faces a potentially crippling operational crisis. Responsible for conducting elections for union representation and with investigating and remedying unfair labor practices, the National Labor Relations Board ( NLRB ) is governed by a five-member Board appointed by the President with the advise and consent of the Senate. The five-year terms are staggered, and tradition holds that there are two Democrats, two Republicans and a Chairman selected from the President’s political party.

Two of the current members – Republican Peter C. Schaumber and Democrat Wilma B. Liebman – are serving terms that will expire in 2010 and 2011 respectively. The two other members – Democrat Dennis P. Walsh and Republican Peter N. Kirsonow – are serving recess appointments that will expire with the final adjournment of Congress in 2007. Chairman Robert J. Battista’s term expireS December 16, 2007.

Members Kirsonow and Walsh have been appointed to serve out terms expiring in 2008 and 2009 respectively, but there is no indication that the Senate will act on those appointments prior to adjournment. And the The White House has not made public its intentions regarding the Chairman’s seat pending vacancies. Although in the past package deals on confirmations have been made quietly and quickly, Senate Democrats may not be in a cooperative mood in the wake of the Republican filibuster and threatened veto of the Employee Free Choice Act. Additionally, labor leaders, who have been harshly critical of the Bush Board, would likely be thrilled to see its operational effectiveness come to an early end. Thus, for now at least, there is a very real possibility that the Board will have only two Members when the new year arrives.

The U.S. Constitution authorizes the President has the authority to fill vacancies in federal offices that require the advice and consent of the Senate when those vacancies occur during a recess of the Senate. It is not uncommon for Board Members to be recess-appointed, and, as noted above, two current Members were. It is not necessary that the vacancy in a federal office arise during a recess by the Senate. It is sufficient that the vacancy exists during the recess. A recess appointment is valid until the end of the next session of Congress, unless the Senate, in the meantime, approves the appointee for the full term of the federal office to which he or she has been appointed.

Chairman Battista’s recent public statements would lead one to believe that he does not expect to be with the Board after his term expires, but the President could easily recess-appoint him or another candidate to lead the agency through the end of 2008.

Because the current recess appointments of Members Walsh and Kirsanow expire at the end of the 2007 session of Congress (assuming the Senate does not confirm them before then), their seats on the Board will be vacant during the recess of the Senate, and President Bush could fill those vacancies with recess appointments. There does not appear to be any prohibition on successive recess appointments, but the Library of Congress’ Congressional Research Service suggests that successive recess appointees may not be entitled to be paid for their service. See CRS Report for Congress, Recess Appointments Frequently Asked Questions (January 2007).

In the event recess appointments are not made to fill the vacancies expected to occur at the end of the current session of Congress and the Board is reduced to two members, it will be in uncertain legal waters. Until recent years, it was assumed that a two-member Board lacked a quorum and could not conduct business or issue opinions. When faced with the prospect of a two-member Board in late 2001, the then three-member Board issued an order temporarily delegating certain authority to the General Counsel that would become effective if the Board dropped below three members. The delegation gave the General Counsel authority to initiate and prosecute injunction actions under sections 10(e),(f), or (j) of the National Labor Relations Act (NLRA) and contempt proceedings to enforce Board orders, to conduct any other court litigation that would otherwise require Board authorization, and to institute and conduct appeals to the Supreme Court. The Board had made a similar delegation in 1993 when faced with the prospect of a two-member Board.

When faced with a two-member Board in August 2005, Chairman Battista announced that it would be legal for the Board to issue decisions with only two members. Chairman Battista cited a 2003 Justice Department opinion reasoning that the NLRA gives the Board the authority to delegate responsibility to three members and when that occurs, two members constitute a quorum. Thus, the Justice Department reasoned, two members of the Board could issue decisions. This legal theory did not have to be tested because President Bush made a recess appointment to the Board (Peter Schaumber, who was later confirmed by the Senate) just days after the Board dropped to two members.