by Todd L. Sarver
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:
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
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
Copyright © 2013 Steptoe & Johnson PLLC. All rights
This Blog has been prepared by
Steptoe & Johnson PLLC for informational purposes only and the content
contained herein is not offered as legal advice. This is an advertisement and
the information contained herein is not intended to create, and receipt thereof
does not establish a lawyer-client relationship. Internet subscribers and
online readers should not act upon the information contained herein without
seeking professional counsel. Do not send information to us until you speak
with one of our lawyers and obtain authorization to do so. Unsolicited
information that you send to us will not be treated as confidential and may be
disclosed to others. Please contact Steptoe & Johnson PLLC at (304)
933-8000 if you have any questions.
For more information about LexisNexis
products and solutions connect with us through our corporate site.