Another Showdown Likely, as NLRB Chair Leaves Hot-Button Federal Agency

Mike Elk

Outgoing NLRB chairwoman Wilma Liebman.

WASHINGTON, D.C. — On Saturday, the term of National Labor Relations Board Chairwoman Wilma Liebman expired. Liebman, who had served on the NLRB for 14 years over three terms, left the independent federal agency, which enforces federal labor law and mediates disputes between unions and management, rather than seek another re-appointment.

AFL-CIO President Richard Trumka was quick to praise Liebman. She worked hard during a time of widespread political divisiveness to ensure that our labor laws work for today’s working families,” Trumka told The Hill. For good reason, she is the third-longest serving member in the NLRB’s history, having been nominated to serve by presidents of both political parties.”

Liebman’s departure from the NLRB is also significant because it narrows the Democratic majority on the NLRB from 3 – 1 to 2 – 1. In addition to Liebman leaving, Craig Becker’s recess appointment to the board expires when Congress adjourns at the end of 2011. (Republicans in Congress previously filibustered Becker, forcing President Obama to appoint Becker through a back door, so to speak.)

Republicans in Congress upset over NLRB’s prosecution of Boeing for allegedly retaliating against striking workers are likely to filibuster any Democrat nominee for the NLRB; thus President Obama would be forced to make another recess appointment so that the board can function.

In New Process Steel L.P. vs National Labor Relations Board, the U.S. Supreme Court ruled in 2010 that the NLRB cannot decide cases with only two members on the NLRB. For 27 months, during the last year of President Bush’s term and the first fourteen months, the NLRB only had two members (a Democrat and a Republican). The two members agreed to work together on common sense cases where they could easily agree on a ruling; they passed judgment in more than 600 cases.

But the Supreme Court invalidated all those rulings because they were made with only two members. To avoid the same scenario once both Liebman and Becker are off the board, Obama must make another appointment.

But will the president act? He didn’t exactly display a sense of urgency to ensure the NLRB can do its job by leaving the agency to languish with only two members for the first fourteen months of his term, before being finally forced to issue a recess appointment. The president may be averse to making a recess appointment — they are traditionally controversial — in an election year, particularly with the Boeing case being a hot-button issue among GOP presidential candidates.

But with many in organized labor upset with President Obama, a failure to issue a recess appointment to keep the NLRB functional could easily turn off many union activists who otherwise would be a boon to Obama’s re-election campaign. The question is: Will organized labor push loudly for the president to make a recess appointment or be mute in its criticism for fear of alienating him in an election?

Mike Elk wrote for In These Times and its labor blog, Working In These Times, from 2010 to 2014. He is currently a labor reporter at Politico.
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