On Dec. 18, the U.S. Senate approved an en bloc nominations package by a 53-43 vote, made possible by lowering the confirmation threshold for subcabinet-level positions to a simple majority. Ahead of the vote, Associated Builders and Contractors and the ABC-led Coalition for a Democratic Workplace supported the confirmation of three NLRB nominees sworn in on Jan. 7: Members James Murphy and Scott Mayer, and General Counsel Crystal Carey.

With these confirmations, the NLRB now has both a quorum and a new general counsel to set enforcement priorities for the first time in 11 months. While the board’s new 2-1 Republican majority allows it to resume regular operations, some have suggested that meaningful policy corrections must wait for the confirmation of a third Republican-appointed member. As former NLRB Chair Marvin Kaplan has recently observed, that might not be entirely true.

Traditionally, the board has required three votes to overturn precedent through adjudication, but seemingly, it has another lawful and appropriate tool available: rulemaking. Unlike adjudication, rulemaking requires only a majority vote of a quorum and is governed by the Administrative Procedure Act, which provides robust safeguards, including public notice, meaningful opportunities for comment, transparency, and both judicial and congressional review. By contrast, policy changes made through adjudication often occur without public input, may apply retroactively and offer limited transparency. For these reasons, the board’s three-member tradition is well suited to adjudication but should not be treated as a barrier to rulemaking.

ABC is considering petitioning the board to propose rules to address issues where clarity and stability are urgently needed, including representation election procedures and use of bargaining orders, employer speech and independent-contractor classification. Decades of policy shifts in these areas have created uncertainty for employers, workers and unions alike. 
The board has the authority to act through rulemaking, the president should nominate a well-qualified third member committed to fully effectuating the board’s mission as a neutral arbiter of the National Labor Relations Act.

SEE ALSO: HOUSE PASSES ABC-SUPPORTED PERMITTING REFORM LEGISLATION

The post Return of the Quorum: New NLRB Confirmations Secure Quorum and General Counsel first appeared on Construction Executive.

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