At 5:00 p.m. EST on January 20th, President Biden fired the general counsel of the National Labor Relations Board. This has never happened before in the history of the NLRB. It is a big deal. Given the fact that the general counsel only had until November when his term would have expired anyway, some may say that this should not be seen as the attack it is on the operations of the Board. This ignores the point that, with this firing of the general counsel, the current administration has now taken the position that the general counsel of the Board serves at the whim of the president. What does that do to the thought process of a future general counsel who is about to authorize the filing of a case against an entity that is a significant supporter of the president?
My over 35 years of experience in labor law has of course hardened me a bit to the seesaw that is the U.S. labor law system as changes in presidents occur and a new majority of the NLRB is nominated to reflect the party of that new president. This has made advising clients in this area of the law difficult. If the matter on which the advice is sought may involve a long-term practice in the workplace such that it may outlast the current term of the president, a labor lawyer is correct to say that the advice given may need to be revisited should the party of the president change with the next election.
The questions really asked by the president’s action on January 20th are these: Do we need a significant change in how the U.S. labor laws are enforced and reviewed in litigation? How far should such changes go? Would it be wise to limit in some way the discretion of the president in nominating members of the NLRB to avoid the swings in political view and its inherent bias? Would it be better to go so far as to create separate labor law courts more similar to the current federal court system with similar processes for nomination and approval of judges for such courts?
If it is possible to organize a group of interested parties with representation from both political parties, both labor union and management side representatives, and representatives who have previously served in the NLRB in some capacity, these issues could be fully reviewed and recommendations made. Who is interested? If you are, let me know. Together, we might start a process that will fix the broken seesaw that is the labor law system in the U.S.