NLRB Suffering Due to Political Wrangling Over Appointments

In testimony to a Senate subcommittee on April 2, the newly appointed chair of the National Labor Relations Board Peter Schaumber, revealed that about 15% of the NRLB's cases are being turned away because of vacancies on the board. These vacancies are not likely to be filled any time soon, due to political posturing.

The NLRB should have 5 members appointed to 5-year terms, with a staggered expiration schedule such that a members' term expires each year, however currently there are 3-vacancies due to Senate wrangling with the Bush administration over nominees. As Chairman Schaumber noted, this limits the Boards' agenda to items on which the Chair and member Wilma Liebman can agree and to which NLRB precedent can be applied.

The terms of members Robert J. Battista, Peter N. Kirsanow and Dennis P. Walsh expired in December, the latter two were serving under a recess appointment. Member Liebman was appointed by President Clinton and is a Democrat; Chairman Schaumber is a Republican. President Bush has re-nominated former members Battista and Walsh and has nominated Gerald Morales, a partner at Snell & Wilmer.

Over the previous 5-years, the NLRB has issued 500 decisions annually; in the first two months of 2008 the board is averaging a rate of approximately 320 for the year (54 decisions) which is sure to slow ever farther. The effect of this slow down will be a compounding effect on the backlog of cases already in the pipeline.

The stalemate in nominations - caused by Senate Democrats asserting the board has not worked with its Republican majority and Union opposition - has the potential to lead to serious legal questions and will result in the rights of all involved being placed on hold. With 3-vacancies on the Board, delaying the process until after the Presidential elections in November could prove appealing to the Democrats, at which time the next President could make appointments, and control the Board immediately and for a significant period of time.

The practical effects of this politicization, however, is the delay timely decisions which are of utmost importance in labor disputes and denying those involved - Union, employee, and business - their rights. Important issues of law and of precedent remain unaddressed, which undermines the credibility of the Board and affects the operation of the Board going forward and argues against the very points Senate Democrats and their Union backers make.

Speaking to the likelihood the Bush nominations are confirmed by the Democratically controlled Senate, Massachusetts Senator Ted Kennedy responded that the Bush Administration has demonstrated "hostility to fairness and justice" and that this board would undermine workers' rights. AFL-CIO President John Sweeney alleges that the NLRB under President Bush "has taken every opportunity to arm U.S. employers with the tools to defeat the attempt of workers to gain a voice at work."

In the absence of resolution on the political issues, both unions and employers will likely appeal to the court system.

RESOURCES

http://www.workforce.com/section/00/article/25/45/40.html
http://www.workforce.com/section/00/article/25/43/87.html
http://blog.aflcio.org/2008/03/19/un-agency-says-nlrb-violates-workers-rights/
http://help.senate.gov/