As recently as the end of July, Republican National Labor Relations Board (NLRB) Member and Chairman Philip A. Miscimarra found himself, in yet another case, filing a dissent to the majority view of his two Obama-era colleagues. For nearly eight months, with two vacant seats on the five- member Board, a pro-business Republican in the White House, a Republican majority in Congress, and the Senate filibuster on presidential nominees a thing of the past, the phenomenon of a Board Chairman finding himself still in a dissenting posture was emblematic of the currently glacial pace of change at the NLRB. The proponents of faster change were, of course, heartened on August 2, when the Senate confirmed President Trump's nominee, Marvin Kaplan, to fill one of the two Board vacancies. However, those sentiments were significantly constrained since the Senate also went into recess until September 5 without voting on Trump's second nominee, William J. Emanuel. The Board will now be almost certainly split 2–2 on any major policy shifts until Emanuel is seated.

Even more disheartening than the delay on Emanuel's confirmation vote was the subsequent announcement by Miscimarra that, for personal reasons, he would not accept reappointment to the Board when his current term ends this December. His impending departure not only will result in the loss of a compelling and articulate voice for a more rational interpretation of the National Labor Relations Act (NLRA), it also raises, yet again, the prospect of a deadlocked Board, assuming Emanuel is confirmed before he departs.

The potential personnel problems do not end on the Board side. Richard F. Griffin, Jr.'s term as General Counsel will expire on November 4. Unlike a Board seat, if a new nominee is not in place when Griffin's term is up, the position will not remain empty. It would be filled on an "acting" basis, most likely by a career attorney at the Board. It is unlikely that anyone serving in a temporary, acting capacity will implement any change at all. Individuals in such positions are usually, at best, caretakers of the status quo.

As is evident from this issue of the Practical NLRB Advisor, the multiplicity and complexity of issues that a new Board majority and General Counsel should revisit are perhaps more extensive than at any similar transition period in the Board's more than 80 years of existence. Ironically, at a time when circumstances suggest the need for action, stasis seems to rule the day. Many observers have correctly counseled that it often takes time to make change at the Board. Indeed, here at the Advisor we have previously noted how long it took the Obama administration to seat its nominees. However, most of that delay came in the confirmation process, in the Senate, and through the use of the now-defunct filibuster. Here, much of the delay has come from the administration itself, with a personnel selection and placement record that has been far from robust. Certainly, Senate Democrats, as the opposing party, have played their role, but in a post-filibuster era it is impossible to have one of the worst records in getting nominees timely confirmed without the nominating party itself taking a significant amount of responsibility for the delay.

Hopefully, when all of official Washington returns in September from its extended summer vacation, it will do so with a new sense of purpose on all fronts. A first sign that this is the case, at least on the labor front, would be the swift confirmation of William Emanuel. Of more significance would be the prompt announcement of two fully-vetted nominees to take the places of Philip Miscimarra and Richard Griffin. There is an increasing sense of urgency on the management side. Hopefully, that will translate into action by the administration and Congress. The amount of work is daunting, and the window of opportunity is invariably narrower than anyone thinks.

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