The Federal Election Commission has too few members to achieve a quorum, rendering it unable to make rulings in the middle of an election year. The NLRB, meanwhile, is having to address its docket with only two of its five members.
NLRB Chairman Robert Battista’s term ended in mid-December, while those of Peter Kirsanow and Dennis Walsh expired in January. Wilma Liebman and Peter Schaumber, who were appointed by Democratic and Republican presidents, respectively, remain on the board.
President Bush has renominated Battista and Walsh, who is a Democrat. He also wants to appoint Gerald Morales, an Arizona lawyer. Those nominations are stalled, along with nearly 200 others, as Bush negotiates with Senate Majority Leader Harry Reid, D-Nevada, to break an impasse.
Democrats accuse Bush of running roughshod over the Senate’s constitutional role in approving nominations by appointing many officials during congressional recesses. Bush asserts that Senate Democrats are playing political games.
Meanwhile, the NLRB continues to function. Liebman and Schaumber have issued 54 decisions since the beginning of the year. But they are sticking to cases in which board precedent can be applied.
The overall pace of work is sure to slow, and more difficult cases will be put off while the board awaits its full complement.
“I’m very surprised how long it’s been going on,” said Charles Craver, professor of law at George Washington University. “The rights of employers, unions and employees are going unresolved.”
Willis Goldsmith, a partner at Jones Day in New York, said that it is too early to tell how vacancies are affecting the NLRB.
Operating with two members could create legal problems and “has the potential to seriously undermine the board’s credibility as well as its effectiveness,” Goldsmith said.
Democrats assert that the NLRB doesn’t work, even at full capacity, with its recent Republican majority. A joint House-Senate hearing in December examined recent rulings that Democrats say undermine unions.
Democrats are particularly upset with Battista, who defended himself by citing increases in back-pay collections and elections conducted and a decrease in the case backlog during his five-year tenure.
Sen. Edward Kennedy, D-Massachusetts and chairman of the Senate Health, Education, Labor and Pensions Committee, called Battista’s renomination an example of the Bush administration’s “hostility to fairness and justice in the workplace.”
In a March 6 press conference, Reid indicated that no nominee was off limits for negotiations with the White House.
“We’re going to try to move as many as we can,” he said.
Getting the NLRB back to full strength quickly will be good for employers and unions, Craver said. In a labor dispute, a timely NLRB decision is important.
The losing side can blame the board and appeal to a court, which curtails endless finger-pointing.
“They want an answer so they can get on with their relationship,” Craver said.