HAS THE NLRB “JUMPED THE SHARK”?

To wax nostalgic for a moment, recall the halcyon times when “Happy Days” was a sitcom favorite.  Fonzie, Richie, Joanie, Ralph, Potsie and the crew congregated at Arnold’s Drive-In, drank milkshakes and listened to the jukebox.  But alas, all good things must come to an end – or at least reach a point of ridiculousness that for all intents and purposes, constitutes its end.  For Happy Days, that moment was the episode in which the Fonz, donning his leather jacket and swim trunks, jumps a shark tank with water skis.  Although the show carried on for several more years, that episode marked the end of Happy Days as a generation knew it.  

The NLRB appears to have jumped its shark as well.  Labor law is a practice area rich in history and tradition, and has long been propelled by adversarial but respectful relationships.  Yet, one certainly can argue that the Board has reached a point of ridiculousness.  Consider: 

  • In the last quarter of 2012, the Board overturned approximately 100 years of precedent.
  • In defense of the Board’s decisions, Member Block postulated that the Board’s actions improved integrity and predictability of federal labor law.
  • Operating with 3 (out of 5 members), on January 25, 2013, the federal appellate court to which appeals of all Board decisions may be taken ruled that 2 of the 3 sitting members were unconstitutionally appointed during a recess, and as a result the Board is without a quorum to operate.
  • The Board immediately announced that notwithstanding the appellate court’s ruling, it would continue to operate business as usual.  President Obama then resubmitted the 2 challenged members (Block and Griffin) for approval by the Senate.
  • Certain members of Congress ask Block and Griffin to step down; they refuse.
  • Congress, the business community and organized labor all submit to President Obama that he must present a full package of Board members (Block and Griffin, plus 2) so that the Board can operate at full capacity.  The President has yet to respond, let alone act. 

Sadly, the NLRB may have become too politicized to be functional.  It has frequently operated over the last 20 years with less than a full five member Board due to political wrangling, but that seems increasingly difficult in the present government climate.  However, to avoid being cancelled like Happy Days, perhaps the appointment process to the Board should be restructured so that it remains relevant (instead of changing law and election procedures to create relevancy)? 

For almost two decades starting in 1935, “neutrals” were appointed to the Board.  Beginning in 1953, President Eisenhower changed that and since that time, the sitting President has appointed a Board that favored the Presidential party.  Instead of union and management attorneys being appointed, maybe the pool should consist of arbitrators (who generally are retired union and management attorneys) as well as union and HR professionals? 

Some will say that many arbitrators aren’t truly neutral, since they often have backgrounds in one side of the sector or the other.  However, the difference is that arbitrators – regardless of their backgrounds – must adapt to their role if they want to be effective (and employed).  That is, they must become a true neutral.  A pool of eligible arbitrators from which the President could nominate and submit to the Senate could be created, and they would be appointed for specified terms without an expectation of resignation upon a change in the Presidency. 

Just a thought. As it is, the labor relations world remains left to watch a show that many feel lost its heart and soul a long time ago.

Todd Sarver focuses his practice on the representation of management in all aspects of labor and employment law. He has extensive experience representing employers in issues arising under the National Labor Relations Act, as well as in labor arbitrations, work stoppages, injunction proceedings, collective bargaining negotiations, corporate campaigns, unfair labor practice proceedings, labor litigation and bankruptcy proceedings.
 
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» Read the full biography of Todd L. Sarver at Steptoe & Johnson

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