Obama Picks Much-Needed Third Member for NLRB

If Brian Hayes is confirmed by the U.S. Senate, the five-member board will again have a quorum. The issue of whether hundreds of decisions issued by the two-member board are valid has been heated since the D.C. Circuit Court of Appeals ruled on May 1 that one such order was invalid.

President Obama on Thursday announced he intends to nominate Brian Hayes, currently Republican Labor Policy Director for the U.S. Senate Committee on Health, Education, Labor and Pensions, as a member of the National Labor Relations Board. If Hayes wins U.S. Senate confirmation, it would be a victory for the five-member NLRB, which decides unfair labor practice and union representation cases.

NLRB currently has only two members, Chairman Wilma B. Liebman and member Peter Carey Schaumber. Board members serve five-year terms, being nominated by the president and confirmed by the Senate. Vacancies have been a persistent problem, one that became acute on May 1 when a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia Circuit issued a decision in Laurel Baye Healthcare of Lake Lanier Inc. v. NLRB, No. 08-1162. The case was a South Carolina health care company's appeal of an NLRB unfair labor practice ruling against it. Rather than allege any error in the ruling, the employer instead argued the NLRB order was invalid because the board had only two members. The D.C. Circuit panel agreed, and the NLRB soon filed a petition for rehearing by the full court.

The case has been followed closely in employment law circles because there has been a split among circuit courts of appeals that have ruled on the question, and also because as many as 400 NLRB decisions issued with just two members could be in jeopardy. The board claims it has the authority to decide cases with just two members. Coverage of the case is available here and here.

According to the White House news release, Hayes worked as a lawyer in private practice for more than 25 years, mainly representing management clients in labor and employment matters. He has represented employers before the NLRB, the Equal Employment Opportunity Commission, and various state agencies and in arbitrations, mediations, and other forms of alternative dispute resolution. His experience includes clerking for the chief judge of the NLRB and serving as counsel to the chairman of the NLRB.

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