Chairman Liebman's third term expired at midnight on August 27, 2011. Her departure brings the NLRB down to three members: Pearce (D), Becker (D), and Hayes (R). As Chairman Liebman departed, Member Pearce was designated the new Chairman of the NLRB. The press release from the NLRB notes that Chairman Liebman was the third longest serving member of the NLRB in the agency's 73 year history.
In a flurry of activity at the end of her term, the NLRB published a new rule requiring that employers post a notice of employee rights under the NLRA, issued a decision reversing a 20-year old precedent on bargaining units in non-acute health care settings (like nursing homes), and overturned two decisions from the 2000s (issued by the NLRB appointed by President Bush). One of the overturned decisions permitted employees the opportunity to vote in a NLRB-conducted, secret ballot election after an employer voluntarily recognized a union, for example through a card check procedure. Chairman Liebman was in the majority on each of these decisions. Watch this blog for further summaries of each of these decisions, made public today.
For her part, Chairman Liebman gave an interview to the New York Times last week. According to the Times article, in the interview she defended the NLRB from attacks by critics, saying, among other things: "The perception of this agency as doing radical things is mystifying to me." She described the rhetoric about the NLRB as "overheated."
For labor professionals, the most significant part of this development is that it brings the NLRB to just three members. Member Becker's recess appointment will expire near the end of 2011. If President Obama is unable to name another recess appointment, and the Senate declines to act on any then-pending nominations, the NLRB will drop to just two members before 2012 begins. The Supreme Court held just over 14 months ago that the NLRB may not issue decisions with just two members. Recognizing the potential procedural obstacle to further NLRB decision-making, some are already calling on Member Hayes (R) to resign in order to hasten the arrival of a two-member NLRB.