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A Reconstituted Board Emerges

By: Alan Ross, Of Counsel | 3/31/2003 | Category: Labor Law-NLRA
After a long period marked by vacancies and turmoil, there is finally a confirmed republican majority on the National Labor Relations Board (Board). This should come as welcome news for employers, who saw fiscal year 2002 end with just three of the five Board members confirmed, resulting in low productivity and fewer cases decided than had been in the past.

The backlog began in December 2001, when democratic member Dennis Walsh’s most recent appointment ended. (The Board is traditionally comprised of two democrats, two republicans and a third member of the sitting President’s party, all of whom are confirmed for five-year terms.) Upon the loss of Walsh, the Board was left with only two members, Wilma Liebman and Peter Hurtgen.

Without the quorum of three, which is necessary to issue rulings, the Board was powerless to decide cases. That changed, at least for the short term, when two republicans, Michael Bartlett and William Cohen, were given recess appointments. The Board was again left with a bare quorum when Hurtgen later stepped down to head the Federal Mediation and Conciliation Service.

As a result of these vacancies and resulting turmoil, the Board only decided 489 cases in fiscal year 2002 — 287 unfair labor practice cases and 202 representation cases. For purposes of comparison, in fiscal year 2001, the Board was able to decide 735 cases, consisting of 536 unfair labor practice cases and 199 involving representation.

Fortunately, the Senate recently confirmed all five of the Board’s members at once, an unprecedented occurrence in the 65-year history of the Board. The new Board now consists of Democrats Wilma Liebman and Dennis Walsh and Republicans Robert Battista (Chairman), Peter Shaumber and Rene Acosta.

A full Board bodes well for General Counsel Arthur Rosenfeld. Rosenfeld is widely considered to be even-handed and cooperative with both management and labor. At a recent convention of labor attorneys, he related several goals that he wanted to accomplish in the coming years. For example, he indicated that he wanted to see more efficient case management, an effort to ensure compliance and effective remedies, and the promotion of better relationships with practicing attorneys.

It is certainly a step in the right direction to have all five members of the Board in place. Moreover, a reconstituted five-member Board has an opportunity to restore balance in federal labor law which was sorely missed during the Clinton years. We will keep you informed.

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