- in Canada
Originally appeared in Labor Law Newsletter - January 2002
The President has the opportunity to greatly influence the labor laws of our country through appointments to the National Labor Relations Board, which is responsible for enforcing the National Labor Relations Act. The President also designates the Chairman of the Board. The Board is responsible for resolving unfair labor practices and determining which labor organization, if any, should represent employees in bargaining. The Board, essentially a judicial body, consists of five members appointed by the President (with the advice and consent of the Senate) for staggered five-year terms, although an individual chosen to fill a vacancy fills only the unexpired term of the prior member.
Although the law does not require any particular political mix, tradition has dictated since 1947 that the political party holding the White House gets three seats and the other party two. However, the President must wait for vacancies to shift the balance to his liking, since Board members can be involuntarily removed only for good cause. When the Senate is not in session, the President can make "recess appointments" to the Board, which are good for a maximum of one year.
The President also appoints the General Counsel of the NLRB (again with advice and consent of the Senate) for a four-year term. The General Counsel investigates and decides whether unfair labor practice charges should go to complaint, and, if so, the General Counsel prosecutes the Complaint. The General Counsel also represents the Board in court proceedings to enforce or review Board decisions.
Currently, there are three vacancies on the Board. The following are the statutory five-year terms by expiration dates and the status of each:
December 16, 2002
Filled by Democrat Wilma B. Liebman, a Clinton appointee. Liebman previously served as Deputy Director of the Federal Mediation Conciliation Service and other positions in that agency. Prior to that, she was counsel for the Bricklayers, counsel to the Teamsters, and a staff attorney with the NLRB.
August 27, 2003
Vacant, but R. Alex Acosta was nominated by President Bush on October 4, 2001, and is awaiting Senate confirmation. Acosta is currently the Deputy Attorney General in the Office of Civil Rights at the U.S. Department of Justice.
December 16, 2004
Currently held by Democrat Dennis P. Walsh under a recess appointment by President Clinton, who nominated Walsh to a full term shortly before he left office. Bush withdrew Walsh’s nomination, and his recess appointment will expire when the Senate adjourns its 2002 session. However, the word now in Washington is that Bush will nominate Walsh for a full statutory term that will run until December of 2004.
August 27, 2005
Currently vacant.
August 27, 2006
Vacant, but currently being filled by the Bush recess appointment of Peter Hurtgen, a Republican appointed by Clinton to a statutory term that expired on August 27, 2001. Hurtgen, whom President Bush designated as NLRB Chairman, can serve until the end of the current session of Congress in 2002, or until the Senate confirms a nominee, whichever occurs first. Hurtgen previously was a partner in a management side law firm.
The General Counsel’s situation is not as confusing. In May, Bush nominated Arthur Rosenfeld for the post, and he was unanimously confirmed by the Senate on May 26, 2001. Prior to becoming General Counsel, Rosenfeld served as Senior Labor Counsel of the Senate Committee on Health, Education, Labor and Pensions and as a Senior Advisor to Senator James Jeffords on matters concerning labor and employment law.
Thus, President Bush theoretically has the opportunity to appoint a majority of members with conservative judicial and labor philosophies like his own and shape the law accordingly; including, perhaps, revisiting some of the decisions of the liberal Clinton Board. However, it is not clear how quickly Bush will act in this area or how successful he will be, not only because of the all-consuming war against terrorism, but because of the loss of the Senate majority and its potential negative impact on the confirmation process.
Copyright 2001 © Vedder, Price, Kaufman & Kammholz. The Labor Law Newsletter is intended to keep our clients and interested parties generally informed on labor law issues and developments. It is not a substitute for professional advice.