Tuesday, January 25, 2005

President Bush Nominates Ronald E. Meisburg to the NLRB

On January 24, 2005, President Bush nominated Ronald E. Meisburg, a Republican, to fill one of two vacant seats on the National Labor Relations Board. He is nominated to serve a term ending August 27, 2008. Meisburg recently finished a recess appointment at the Board.

During his recess appointment, Member Meisburg consistently sided with his Republican colleagues over his Democratic counterparts in cases involving important policy issues. See Harborside Healthcare Inc., 343 NLRB No. 100 (2004) (articulating standard for prounion supervisory conduct and finding that supervisors engaged in objectionable conduct by soliciting authorization cards); Crown Bolt Inc., 343 NLRB No. 86 (2004) (refusing to presume dissemination of plant closure threats); Oakwood Care Center, 343 NLRB No. 76 (2004) (overruling Clinton Board decision on user and user/supplier employee units); Brown University, 342 NLRB No. 42 (2004) (holding that graduate assistants are not statutory employees); Dana Corp., 341 NLRB No. 150 (2004) (granting review to determine whether to maintain the voluntary recognition bar); IBM Corp., 341 NLRB No. 148 (2004) (holding that nonunion employees are not entitled to a coworker at investigatory meeting).

On the other hand, Member Meisburg was the Republican most likely to break from his party colleagues and join a Democrat to find that an employer violated the Act. These cases turned more on their facts than on an issue of law. See RC Aluminum Industries, Inc., 343 NLRB No. 103 (2004) (Meisburg and Liebman in majority finding discharge unlawful; Battista dissenting); CBS Broadcasting, Inc., 343 NLRB No. 96 (2004) (Meisburg and Walsh in majority finding that employer violated Section 8(a)(5) by refusing to bargain with one union in unit with joint representative; Schaumber dissenting); Abbott Northwestern Hospital, 343 NLRB No. 67 (2004) (Meisburg and Liebman concurring that employer violated Section 8(a)(3) by refusing to hire another employer’s striking employees; Battista dissenting); Parkview Hospital, Inc., 343 NLRB No. 13 (2004) (Meisburg and Walsh in majority finding that employer violated Section 8(a)(3) by giving union supporter a poor evaluation; Schaumber dissenting). I found only one case in which a different Republican (Battista or Schaumber) joined with a Democrat to find a violation where Meisburg dissented. Fachina Construction Co., 343 NLRB No. 98 (2004) (Battista and Liebman in majority finding that employer violated Section 8(a)(3) by discriminating against employees for engaging in protected activity; Meisburg dissenting).

Thus, Member Meisburg was the swing vote on the Board; sort of a Justice O'Connor of the the NLRB.



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