New General Counsel and Board Members Sworn In
After one year of vacancies, the NLRB is now fully operational.
On January 7, Crystal Carey was sworn in as the NLRB General Counsel and James Murphy and Scott Mayer were sworn in as NLRB Board members. The three appointees were confirmed by the Senate on December 18 of last year. As noted in my coverage of their confirmation, the appointments of Murphy and Mayer bring the number of Board members up from one member to three members, which is the number needed to form a quorum capable of issuing decisions.
The NLRB has been without a quorum for nearly a year and has amassed a significant backlog of cases requiring Board decisions. In an interview with NLRB Edge, outgoing NLRB Member Marvin Kaplan indicated that he and remaining Board member David Prouty worked on cases during the year in which the Board lacked a quorum so that, when the Board regained its quorum, it could issue many of these backlogged decisions quickly, assuming the new Board agrees with the conclusions Prouty and Kaplan reached on those cases.
Whenever control of the NLRB switches from one party to the other — in this case from Democrats to Republicans — the big question is what precedents the new leadership will set or reverse during its term. The NLRB GC typically has some precedents that she would like to reverse and will litigate certain cases with that goal in mind. But only the Board has the power to alter the agency's interpretation of the NLRA. Historically, the Board has only reversed existing precedent when it has a three-vote majority to do so. But because the Board currently has only three of its five members, and one of those members is Democrat David Prouty, it is unlikely that it will be able to secure three-vote majorities for precedent reversals. Whether the new Board intends to abide by the three-vote norm or do away with it remains to be seen.