NLRB Member Schaumber Expresses Concern, Suggests Alternative Labor Law Reforms
For the better part of the past twenty-eight months NLRB Member Peter Schaumber has worked with Chairman Wilma Liebman while the National Labor Relations Board has been operating with only two of its five positions filled. This week, the U.S. Supreme Court heard oral argument in New Process Steel v. NLRB, Docket No. 08-1457, to pass upon the issue of whether the hundreds of decisions handed down by the two-member Board are legitimate.
Last week, we attended a breakfast hosted by the Atlanta Bar Association Labor & Employment Section, at which Member Schaumber spoke about the two-member issue. In his remarks, Member Schaumber indicated that he and Chairman LIebman had handed down approximately 600 decisions since December 2007. While a majority of them are now beyond the compliance stage, he indicated that the Supreme Court's decision may impact approximately 80-100 cases -- most of which involve employer challenges. Member Schaumber would not comment on whether the Board had a plan to deal with these cases if the Supreme Court invalidates the two-member Board decisions.
Today, the NLRB issued a press release reiterating some of Member Schaumber's remarks at the ABA Labor & Employment Law Section's Mid-Winter Meeting on March 3 in Puerto Rico. At that conference, Member Schaumber indicated his concern with “the possibility of an upcoming wholesale reversal of Bush Board precedent,” which could “reignite and intensify the negative view of the NLRB as mired in partisanship.”
We've previously outlined a number of the most obvious decisions on which a fully-constituted Liebman Board is likely to reverse course. Many question whether we are only a few days away from that full Board, as President Obama may well be considering making recess appointments during the congressional recess beginning this weekend.
Member Schaumber suggested labor law reforms intended to mitigate the view of partisanship and the frequency of precedent reversal during successive Presidential administrations:
He said U.S. labor laws are in need of reform but suggested changes that are not now being discussed, “from the manner in which Board members are selected to the possible role of work councils to whether consideration should be given to abolishing the Board all together in favor of a Federal labor and employment court with judges appointed for life.”
While these notions have not gathered much traction in the discussion about reforming American labor law -- in part, because there has been no discussion -- Senator Arlen Specter posed similar questions in his 2007 Harvard Journal of Legislation Policy Essay:
Has the Board appropriately balanced a sparing use of rulemaking authority and heavy reliance on adjudication? Would the Board gain legitimacy if Board Members were more insulated from the political appointment process, perhaps through longer terms or a different appointment process? What other institutional reforms would both encourage and empower Members to act more like judges and less like political appointees?
