The Corner

Obama’s Recess Appointments to the NLRB

Over the weekend, President Obama made two recess appointments to the National Labor Relations Board. Employer groups have directed most of their attention to the appointment of Craig Becker, who they maintain will tilt the Board significantly in Labor’s favor. Lost in the noise concerning Becker’s recess appointment, however, are signals that the Obama administration is playing a rather shrewd longer-term game concerning the NLRB.

Prior to this weekend’s appointments, there were three vacancies on the five-member Board. Traditionally, the president nominates, and the Senate confirms, a package of nominees to fill outstanding vacancies. In the instant case, the president last year nominated a “package” consisting of Becker, Mark Pearce, and Brian Hayes to fill the vacant seats. Brian Hayes was the sole Republican nominee.

Hayes, however, was not among the recess appointments this weekend. This suggests that the president may be using the appointment of Hayes as leverage to get the Senate to confirm the original three-nominee package.

Why is this of note? Because recess appointments last only until congress adjourns at the end of 2011. But if the senate confirms Becker and Pearce in exchange for getting Hayes on board also, Becker and Pearce’s confirmed terms would be extended by approximately three more years — plenty of time for the Obama Board to make a substantial imprint on labor law.

Moreover, the term of NLRB General Counsel Ron Meisburg — a Bush appointee — expires this summer. Given the GC’s enforcement authority, an Obama appointment to this position is likely to have a more immediate impact on everyday labor-management relations than the Board member appointments.

Finally, the term of my former colleague, Peter Schaumber, also expires this summer. His departure would deprive the Board of its sole experienced Republican member.

Peter Kirsanow — Peter N. Kirsanow is an attorney and a member of the United States Commission on Civil Rights.

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