Attorney and Commission on Civil Rights member receives “recess appointment” to NLRB. In law practice, he mainly represented management, but in new board post pledges to “apply the law and the precedents to the facts of the case.”

President Bush�s Jan. 4 recess appointment of attorney Peter N. Kirsanow to the National Labor Relations Board moves the panel closer to full strength, filling one of two open slots on the five-person board. But it�s uncertain whether his appointment, which extends into 2007, will help trim the backlog of big NLRB cases, some involving construction.

NLRB policy has been to have at least three votes for a position on key cases, three being a majority of the panel�s full complement, says Dave Parker, deputy executive secretary. With four members, he says, �That means the board could issue �lead cases� if it chooses to.�

In November, Bush nominated Kirsanow, a partner with Benesch, Friedlander, Coplan & Aronoff LLP in Cleveland, for an NLRB term expiring in 2008, but the Senate didn�t act. A Senate source says there was significant Democratic opposition to at least two labor agency nominations and adds that �apparently the White House did not get a sense that a deal could be reached� and used recess appointments.

AFL-CIO President John Sweeney criticized Kirsanow, contending he �has expressed a marked hostility to unions.� But Kirsanow, also a U.S. Commission on Civil Rights member, says, �I�ve never expressed any hostility toward unions.� He says he�s been a labor lawyer for more than 25 years, mainly representing management, but adds that in his NLRB post, �I will apply the law and the precedents to the facts of the case.� He says, �I grew up in a union household,� noting that his father was a steelworkers� union member.

The Associated General Contractors and Associated Builders & Contractors didn�t take positions on Kirsanow. But with four members at NLRB, AGC �is hopeful that some stale cases will be decided promptly and soundly,� says Denise Gold, associate general counsel. Adds Maurice Baskin, ABC general counsel: �We�re glad that someone has been appointed who appears to have the credentials to get the job done and we�ll all hope for the best.�

Pending construction cases include Indeck Energy Services, concerning the National Labor Relations Act definition of �employer in the construction industry.� That can affect project labor agreements. In 1998 NLRB remanded Indeck to an administrative judge, who hasn�t ruled yet. Also unresolved is a case involving BE&K Construction Co. Afater BE&K lost or withdrew lawsuits against certain unions, NLRB said the suits violated labor law. An appeals court agreed. But in 2002 the Supreme Court ruled for BE&K and remanded the case. NLRB hasn�t issued a new ruling yet.

Other pending cases deal with state prevailing-wage laws and with �bannering,� in which unions display signs criticizing construction firms� customers.