NLRB Chairman: Recess Appointees Should Show Restraint

With Craig Becker and Mark Pearce coming onto the National Labor Relations Board via presidential recess appointment, we hope they take seriously the words of their Democratic colleague, NLRB Chairman Wilma Liebman. Recess appointees should not make major policy decisions, she says.

This is not the first time Ms. Liebman has been on a Board of recess appointees. It happened in 2002. Speaking to both union- and management-side labor lawyers about her experience at the American Bar Association meeting of the Section of Labor Law (August 13, 2003), then-Member Liebman was quoted as saying, “Recess appointees should be hesitant to overrule precedent because it could be seen as a rush to judgment and undermine public confidence. In contrast, a decision to overrule precedent by a fully confirmed board can be perceived as having more credibility.” She continued, “Recess boards should be caretakers and keep the railroad running and not make major policy decisions.”

That’s from an entry by Harold R. Weinrich of Jackson Lewis, writing at the law firm’s Union and Labor Law Reform report, The NLRB in Transition – Whither Board Law?. He adds:

At least that is what she said when Republicans controlled the Board. We will be watching keenly whether Chairman Liebman will keep the Board from jumping the tracks of established policy now that Democrats are in charge. Regrettably, few, if any, practitioners (management or labor) believe she will remain true to her word on this. Odds are Liebman and Becker will work at peak throttle to reverse major Board decisions in order to fulfill their vision of Labor Law Reform, while bypassing Congress.

Yes, that’s the well-founded fear.

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