A 1985 article by Dwight D. Opperman Professor of Law Samuel Estreicher was referenced in a Daily Labor Report article about the National Labor Relations Board, which is designed to have five members and traditionally issues decisions by a three-member panel. The Board has been operating with two members all year because the Senate has blocked President Bush's nominations and prevented him from making recess appointments.

Estreicher's article argued that if the Board would use rulemaking to make policy decisions, it could focus on relatively routine cases requiring application of the current law to the facts and decide those cases expeditiously. Board member Wilma Liebman said the two-member board has been doing just that.