For most of the Trump 2.0, the NLRB has been paralyzed from deciding cases due to the lack of a quorum. The Board is not able to issue decisions unless three of its five Board positions are filled. For the last few months, there has been only one NLRB Board member: Democrat David Prouty. It looks like this may finally change in the coming weeks/months.
On October 9, retired NLRB attorney James Murphy cleared the Senate Health, Education, Labor and Pensions (HELP) Committee and is expected to be confirmed once his nomination is put up to the entire Senate. Meanwhile, Boeing lawyer Scott Mayer’s nomination was stalled at the same October 9 HELP Committee hearing when a group led by Missouri Senator Josh Hawley shelved the vote on his nomination. The HELP Committee was supposed to take up Mayer’s nomination again on November 19, but postponed it a second time, without explanation.
On Monday, the HELP Committee announced that it will consider and vote on Scott Mayer’s nomination next week, on Wednesday December 3. One of the obstacles previously facing Mayer’s nomination was the three-month Machinists strike at Boeing’s Missouri plant, which Senator Hawley blamed on Mayer and his management team at the October 9 hearing. Hawley was also not happy about Boeing’s decision to use replacement workers to complete projects in the plant during the strike.
With that strike resolved and a new contract ratified by a 2/3 majority of the Boeing Machinists about two weeks ago, most expect Hawley to now support the nomination and push Mayer through the HELP Committee next week. Once that happens, it is reasonably likely that both Mayer and Murphy will be confirmed by the Senate sometime in December or January, giving the Board three active members and a quorum.
Assuming the predictions above pan out, and a quorum is re-established, the Board will be quite busy as there are hundreds of cases and matters that have been sitting idle and need to be addressed. Decisions from a Board made up of Mayer, Murphy and Prouty are likely to be pro-employer. However, one key question still remains, even if a quorum is reached: Traditionally, the NLRB does not overturn precedent without a vote of three members in support of the change. With Member Prouty likely to continue to support Biden NLRB positions, it remains unclear whether a three member NLRB will actually modify federal labor law back in favor of the employer.
We will report back after the December 3 HELP Committee hearing. Please continue to follow NLRB and federal labor law developments here, as we will continue to update you on the latest news from Washington and the NLRB regions across the country.
