Wednesday, August 31, 2011

And then there were three--Chairman Liebman departs the NLRB

Chairman Liebman's third term ended on August 27, 2011, leaving the Board with three members.  With Member Becker's recess appointment set to expire at the end of the year, the Board will be down to two members. A two member Board cannot issue decisions so the Board will be unable to issue decisions.

The departure of Chairman Liebman does not mean that her involvement in decisions has ended.  We have seen and can expect to see more decisions in which Chairman Liebman participated prior to August 27. The long awaited reversal of Bush Board decisions seems to have begun.  As noted by Jon Hyman at the Ohio Employer's Law Blog, the decisions announced this week are major victories for unions especially in the representation area.

So what is likely to happen?  More recess appointments by the President?  The Republicans in the House and in the Senate are holding a series of pro forma sessions in the House and Senate during the August recess to prevent such appointments.  It is anticipated that similar tactics will be used through the end of the year.

It is likely that much of 2012 will be spent with a two member Board and with an ever increasing backlog of cases. The outcome of the 2012 election will determine whether there will be a more aggressive Obama Board or a return to the decisions of the Bush Board.

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