NLRB Chair Wilma Liebman’s Term Expires at Midnight: What’s Next?

National Labor Relations Board Chairman Wilma Liebman’s term expires tonight at midnight, and will leave the Board with only three Members. Chairman Liebman has served on the Board for almost 14 years after first being appointed to the Board by President Bill Clinton. She was reappointed by President George W. Bush in 2002 and 2006, and was named Chairman by President Barack Obama in January 2009. Chairman Liebman said in a statement:

“It has been a privilege to serve on the Board and to work with people committed to carrying out the important mission of this agency. The values embodied in the National Labor Relations Act – which gives Americans a voice at work and helped to build a middle-class society – are enduring. I am confident that the Board will hold fast to those values, even in challenging times.”

Chairman Liebman’s term saw what she called the Board "coming back to life after a long period of dormancy…" Liebman’s Board sought to reverse decisions handed down by the previous administration, strengthened Board-ordered remedies, and advanced significant expansions of the scope of employee rights protected by the NLRA — particularly in the area of adapting the labor law to technological developments like social media.

Chairman Liebman also served as Member along with former Chairman Peter Schaumber during the 27 month period from December 2007 until March 2010, where there were only two Members on the Board. The Board normally contains five Members, but the NLRA provides that a quorum of three can act. The "two-Member" Board handed down some 600 decisions during this period — which the U.S. Supreme Court ultimately invalidated in its decision in New Process Steel L.P. v. National Labor Relations Board, 08-1457.

So, now that the Board is down to three Members again, now what? Republican Member Terence Flynn’s nomination is stalled in the Senate. The Congress has been taking steps to prevent a recess which would allow President Obama to recess appoint additional members. The President’s last recess appointment — Member Craig Becker — sees his appointment expire when Congress adjourns at the end of its term. There is no question that the current three Members constitute a quorum, able to conduct the business of the Board.

But with a lot of controversial Board activity currently under active consideration, and already amidst a politically charged season, one might wonder: What if the remaining Republican Member, Brian Hayes, was to step down?

Stay tuned….