Emory Law Journal


The National Labor Relations Act has never explicitly required political balance in the National Labor Relations Board¿s (NLRB or Board) appointment process. But the Eisenhower administration demonstrated that policy shifts could be initiated through changes in NLRB composition. The Kennedy Board shifted gear again, prompting critics to say that the Board was on a ¿seesaw.¿ More pronounced polarization began to emerge in the 1980s as political party divisiveness and union decline created more adversarial relationships. In the 1990s, divided government produced a ¿batching¿ of appointees (in contrast to annual Senate confirmation votes on each appointment as their term expired), horse trading of ¿interchangeable elites engaged in an insider¿s game¿ as Professor Calvin McKenzie said. Ultimately, the consequences of impasse through this process twice resulted in Supreme Court decisions interpreting the Act and the Constitution so as to alter the relationship between the President and the Senate. But the Senate, under Senator Reid, was to trump the practical effect of these holdings by eliminating the filibuster, which frequently stalled or stopped NLRB appointments. Paradoxically, however, through both oversight hearings and the Congressional Review Act of 1996, legislative interference with the work of the NLRB has never been more extensive.