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And then there were three: NLRB member’s term ends, new chair appointed

On August 27, 2011, the third term of former NLRB Chair Wilma Liebman ended.  The expiration of Liebman’s term leaves the Board with only three Members: Mark Gaston Pearce (D), Craig Becker (D), and Brian Hayes (R).

The White House selected Mark Gaston Pearce to replace Liebman as Chair.  Given that the Board’s Chair historically has the same political affiliation as the White House, Pearce was the only logical choice because he is the only fully confirmed Democrat still on the Board.  Becker, the other Democratic appointee, is a recess appointment and his term will expire in December.

While the current three-person board constitutes a quorum and, therefore, can act officially, the Board is now one step closer to losing its ability to take more pro-union actions, such as the Board’s recent rule requiring posting of employee rights under the NLRA.  If Member Becker’s recess appointment expires without a new appointment, the Board will be unable to act because, as the United States Supreme Court recently decided the Board has no authority to act officially without at least a quorum of Members.

Employers should expect a flurry of pro-union activity from the NLRB before Becker’s recess appointment expires.