Who's Who at the National Labor Relations Board
The National Labor Relations Board (the "NLRB" or "Board") is a federal agency created by Congress in 1935 to administer the National Labor Relations Act (the "NLRA"). The Board functions primarily in two areas. First, the Board establishes and oversees procedures for union representation matters (those involving union elections, decertifications and clarification of existing bargaining units). Second, the Board adjudicates charges that employers and unions have engaged in unfair labor practices in violation of the NLRA. In carrying out these roles, the Board wields tremendous power in charting the course of labor-management relations in the United States. As such, many employers naturally ask: who are the people making these decisions that can have such a dramatic impact on my business?
The Board itself, which sits in Washington, D.C., is a quasi-judicial body comprised of five members that decides both unfair labor practice and representation cases which, generally, are appealed to it from the recommended decisions and orders of various administrative law judges (in unfair labor practice cases) and from decisions issued by the Regional Directors (in representation matters). The Board is the "Supreme Court" of the agency. Board Members are appointed by the President to 5-year terms, with Senate consent, and one Member is designated by the President to serve as the Chairperson.
Although the Board is supposed to have five sitting Members who were confirmed by the Senate, it is not uncommon for there to be fewer than five Members. In addition, when a Member's term expires but no new Member has yet been nominated by the President or confirmed by the Senate, there occurs a "recess" opening on the Board, and the President may make a "recess appointment," under which a Member serves temporarily without Senate confirmation. Presently, there is only one permanent member of the Board, Wilma B. Liebman, who serves along with two recess appointees, Peter J. Hurtgen (the Chairman), and Dennis Walsh. The recess appointment of Member Walsh is set to expire soon, which would leave the Board with only two members and thus unable to function. (Agency rules require at least three Members to hear a case.) President Bush recently announced his intention to appoint another Member to the Board, but the fifth position appears destined to remain vacant for the near future. A short biography of the three sitting Members, and one anticipated appointee follows:
Wilma B. Liebman was appointed by President Clinton and confirmed by the Senate; her term expires on December 16, 2002. Ms. Liebman formerly served as the Deputy Director of the Federal Mediation and Conciliation Service, a federal dispute-resolution agency, where she acted as in several capacities, ultimately in the position of chief operations officer, overseeing arbitration, alternative dispute resolution, international affairs and labor-management cooperation grant programs. Prior to that, Ms. Liebman was a union-side attorney: she was Labor Counsel for the Bricklayers and Allied Craftsmen for four years and for the International Brotherhood of Teamsters for nine years. She also served as a staff attorney with the NLRB in one of its Regional Offices.
Peter J. Hurtgen was appointed to the Board by President Clinton and confirmed by the Senate to serve for a term that expired on August 27, 2001. President Bush designated Mr. Hurtgen Board Chairman on May 15, 2001 and, when his term expired, conferred upon him a recess appointment which he still holds. Prior to serving as a Board Member, Mr. Hurtgen practiced labor law as a member of two management-side law firms.
Dennis P. Walsh received a recess appointment from President Clinton on December 29, 2000, and on November 6, 2001 President Bush announced his intention to nominate Mr. Walsh as a Member for a term expiring December 16, 2004. He has not yet been confirmed by the Senate. Mr. Walsh is a career Board employee. He formerly served as Chief Counsel to two other Board members, Wilma B. Liebman and Margaret A. Browning, and also served as Staff Counsel to Board Member Patricia Diaz Dennis. Prior to that, he was a field attorney with the NLRB's Regional Office in Philadelphia.
On October 4, 2001, President Bush announced that he intends to nominate R. Alex Acosta to be a Member of the Board for the remainder of a five-year term expiring on August 27, 2003. Mr. Acosta currently is Deputy Attorney General in the Office of Civil Rights at the Department of Justice. In 1997, he founded the Project on the Judiciary, which he directed until joining the Department of Justice. Prior to that Mr. Acosta practiced law with a management-side labor and employment firm.
The General Counsel
While the five members of the Board fulfill the agency's adjudicatory function, the prosecutorial function is carried out by the NLRB's General Counsel. The General Counsel is appointed by the President to a 4-year term with the consent of the United States Senate. The Office of the General Counsel is responsible for the investigation and prosecution of unfair labor practice charges, and oversees the administration of the various NLRB Regional Offices throughout the United States.
The current General Counsel is Arthur F. Rosenfeld, a Republican who was appointed by President Bush and unanimously confirmed by the Senate on May 26, 2001. Before becoming General Counsel, Mr. Rosenfeld was Senior Labor Counsel of the Senate Committee on Health, Education, Labor and Pensions, and also served as a senior advisor to Chairman James M. Jeffords on matters pertaining to labor and employment law. Before his work with the Senate, Mr. Rosenfeld worked at the U.S. Department of Labor in various capacities.