During the Bush administration, a Democrat-controlled Congress blocked the president from filling vacancies on the National Labor Relations Board (NLRB), which normally has three members from the president’s party and two from the opposition. The board ended up with two members—one Republican and one Democrat—for more than two years. In a June 2010 decision, New Process Steel, L.P. v. NLRB, the Supreme Court held that the two-member board was not authorized to issue decisions or promulgate rules.
Now the tables are turned, and when Craig Becker’s term ends Dec. 31, the board will again be down to two members, one from each party. President Obama likely won’t have the votes to confirm another Democrat, and the GOP-controlled House can stop recess appointments by refusing to agree to a Senate adjournment.
“I think you will see a two-member board with the resulting shutdown of their ability to create precedent and make social policy,” says Ken Yerkes, a partner at Barnes & Thornburg.
Hal Coxson, a shareholder at Ogletree Deakins, suggests a different scenario: The president could work with congressional leaders to appoint one NLRB member from each party so the board would be split with two Democrats and two Republicans. It could act on routine cases and keep the process moving, even though controversial cases would be stalemated.