Employment Law Report
NLRB Member Confirmation Battles–January 2001–January 2009
Currently, there is controversy over the U.S. Senate’s lack of action in confirming President Obama’s nominees to be members of the five-person National Labor Relations Board (NLRB). Since the end of December, 2007, the NLRB has been operating with only two Members (instead of five). The issue of whether this constitutes a proper quorum under the National Labor Relations Act (NLRA) is currently before the U.S. Supreme Court.
AFL-CIO President Richard Trumka has accused Senate Republicans of attempting to interfere with worker protections under the NLRA by not allowing up or down votes in the Senate on President Obama’s nominees. The impression left is that all the problems at the NLRB are the fault of Senate Republicans.
However, one look at the NLRB’s website tells another story. During the eight (8) years President George W. Bush was in office, the Senate did not have a very good record of approving Bush’s NLRB nominees and he had to resort to recess appointments.
During the period 2001 through 2006, the Republicans never had a cloture-proof majority of 60 in the Senate. In 2006, the Democrats gained control of the Senate and maintained that control through the end of Bush’s presidency. The following persons served on the NLRB during the Bush administration.
Peter J. Hurtgen, a Republican, had been confirmed by the Senate in 1997 for a term ending in August, 2001. President Bush gave him a recess appointment in August, 2001, which ended in August, 2002.
Wilma B. Liebman, a Democrat, was confirmed by the Senate in 1997, 2002, and 2006, and designated by President Obama as Chairman in early 2009. Her term expires in 2011.
Dennis P. Walsh, a Democrat, was confirmed by the Senate in 2002 for term that expired on in 2004. In early January, 2006, he was granted a recess appointment by President Bush that expired in December, 2007.
Michael J. Bartlett, a Republican, served under a recess appointment by President Bush from January through almost the end of November, 2002.
William B. Cowan, a Republican, served under a recess appointment by President Bush from January through almost the end of November, 2002.
R. Alexander Acosta, a Republican, was confirmed by the Senate in 2002 for a term that expired in August, 2003.
Robert J. Battista, a Republican, was confirmed in 2002 and his term expired in December, 2007. He served as Chairman during his time on the NLRB.
Peter C. Schaumber, a Republican, was confirmed by the Senate in 2002 and his first term expired in 2005. He then served a recess appointment until confirmed by the Senate for a second term in August, 2006, that expires in August, 2010. He was designated Chairman by President Bush in March, 2008, and served as such until Member Liebman was designated Chairman in early 2009 by President Obama.
Ronald E. Meisburg, a Republican, served a recess appointment from January to December 8, 2004, and currently serves until August, 2010, as NLRB General Counsel.
Peter N. Kirsanow, a Republican, served a recess appointment by President Bush from January, 2006, through December, 2007.
Most of those who served recess appointments throughout Bush’s term were nominated by President Bush but were not confirmed by the Senate.
In the fall, 2006, the Democrats gained control of the Senate. Although President Bush nominated a number of persons to serve on the NLRB so as to fill out the five-member board, some of whom had previously served including one Democrat, Dennis P. Walsh, the Senate Democrats blocked those appointments and, beginning in December, 2007, refused to recess the Senate. Thus, President Bush was deprived of his ability to even make recess appointments to the NLRB. During that time, some unions even picketed the NLRB’s headquarters in Washington, D.C. calling for an “NLRB shutdown.”
The last confirmations of NLRB nominees occured in August, 2006. Effectively beginning in the Fall, 2006 through January 19, 2009, the Democratic majority in the Senate prevented President Bush from appointing members to the NLRB and it had to function with only two members after December, 2007.