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On his final day as chairman of the National Labor Relations Board, Peter Hurtgen announced he was returning to his law firm. Hurtgen — the only Republican among four sitting board members — had made it clear he was willing to stay on. But he had not heard from the White House. So he packed up his files and moved back to the Washington, D.C., office of Morgan, Lewis & Bockius. The White House did finally call — on Aug. 29, two days before the formal partnership vote on Hurtgen — and offered the chairman a recess appointment. Now the Hurtgen incident is serving as a parable for the Bush administration’s handling — or mishandling — of its labor agencies. The business community is chafing at the number of important positions yet to be filled. The result, advocates say, is that labor boards still dominated by Democrats are making pro-union decisions they expected would end in a Republican administration. And they are frustrated by a lack of new initiative on labor issues, such as wage and hour reform. “We were hoping we would quickly get in place [a labor relations board] we would have confidence in,” says William Kilberg, a management-side partner in the D.C. office of Gibson, Dunn & Crutcher. “Every day that goes by seems distressing.” Privately, some business groups and lobbyists are saying responsibility for those openings lies not just with the slow appointments process, or the change in the Senate, but also with the administration. “I think there has been a lack of attention to the labor and employment field,” says a business lobbyist active in the labor relations field. “I don’t think this administration feels a sense of urgency about the operations of the NLRB, the [Equal Employment Opportunity Commission], and the Department of Labor.” The White House referred calls to the Labor Department. “I think the Department of Labor has been very successful in getting its political appointments filled,” says Labor spokeswoman Sue Hensley. “It’s at the top of the secretary’s priority list.” PROMISING BEGINNING Linda Chavez was the first appointee to the Labor Department, and the first of President George W. Bush’s picks to be withdrawn. But after that incident, the Department did well. Throughout the summer, the Senate approved a steady number of assistant and deputy secretaries. Eugene Scalia’s nomination as solicitor of Labor was the only one that seemed destined for controversy. But the Labor Department isn’t the only government institution that matters to unions and management. A wider picture of the various labor agencies reveals a number of unfilled positions. The EEOC has two spots and the general counsel position vacant. The Occupational Safety and Health Review Commission, which reviews the Occupational Safety and Health Administration’s decisions, has one vacancy. The Federal Labor Relations Authority, which oversees the government’s union disputes, has an open position. The Federal Mediation and Conciliation Service, which provides arbitration assistance for unions and employers, is missing a director. Even at the Labor Department, the posts of assistant secretary for employment standards administration and the administrator of the Wage and Hour Division are still vacant. And President Bush has yet to announce even an intention to nominate anyone for the positions. “What you have is pretty much inertia and maintenance of the status quo,” says Sherwin Kaplan, of counsel at Piper Marbury Rudnick & Wolfe in D.C. and a former Labor Department staffer. “The agencies seem to be marking time rather than saying, ‘We have a new administration and new leadership and this is what we want to accomplish.’ “ DASHED HOPES Business had high hopes that the Bush administration would bring a sea change at many agencies. They envisioned an NLRB and an EEOC that would rule more for employers, and a Labor Department that would overhaul Clinton era rules on issues such as definitions of professional employees, regulations on workplace volunteering, and payment of overtime. Those keeping close tabs on the NLRB are the most concerned. A GOP general counsel is in place, but the five-member board only has four active members, including Hurtgen. Of those, one, John Truesdale, is leaving Oct. 1, and another, Dennis Walsh, is a Clinton recess appointee whose term expires when Congress next recesses. If new NLRB members are not confirmed before then, the board will not be able to operate. The makeup of the board is critical. According to the management-oriented policy group LPA, in the first seven months of the Bush administration there were 60 cases in which Republican Hurtgen dissented — 60 cases that could have gone the other way if the board had been stocked with Bush appointees. “We would like to see the NLRB positions filled as soon as possible,” says William Spencer, a lobbyist with Associated Builders and Contractors. “Our chapter attorneys are very frustrated. They would rather not see their cases come before the board now.” The problem, according to business, is twofold: the administration’s lack of attention, and the contentiousness of filling the board. Hurtgen, by all accounts, including his own, will not be nominated for a permanent position. “It is and it isn’t a disappointment,” says Hurtgen. “If I am viewed as being too moderate or too balanced, I take that as a point of honor.” Bush is instead working on a four-member slate. According to lobbyists, two of his picks are Dennis Walsh, a Democratic member of the board, and J. Robert Brame, a Republican who served on the board between 1997 and 2000 and who is a strong supporter of the right-to-work movement. The last slot is proving the most difficult to fill. In recent years, the fifth seat has been seen less as a political slot and more as one reserved for a neutral broker. Truesdale, a former NLRB staffer, served that role. Peter Schaumber, president of the Republican National Lawyers Association and an arbitrator, is said to be in the lead for the position. But until the administration moves on those positions, the current board will have to hobble along. “I think the four of us will continue to be very productive,” says Hurtgen. “What will affect productivity is if member Walsh is not reconfirmed and he goes off the board when Congress adjourns in the fall. That will bring us to two. We can’t decide cases. That will mean cases will wait.”

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