By Thomas A. Lenz and Jonathan Judge
On June 17, 2010, in New Process Steel, L.P. v. National Labor Relations Board, the United States Supreme Court dealt a severe blow to the National Labor Relations Board (NLRB) and hundreds of NLRB decisions. From the period of late 2008 to early 2010, the NLRB operated with a two member quorum. Three empty seats at the Board remained during this period as appointment packages did not receive Senate confirmation at the end of the Bush Presidency and beginning of the Obama Presidency. The two NLRB members remaining decided to render decisions on cases where they could agree. Relying upon legal advice that they could render decisions on behalf of the Board with a two member quorum, the two members issued decisions on hundreds of cases involving unfair labor practice and union election issues.
In the Supreme Court's 5-4 ruling, signaling a deeply divided decision, the majority expressed that the Board lacked authority to decide cases with only two members, and instead, confirmed that three sitting Board members are required for a quorum. In sending the hundreds of decided cases back to the NLRB for reconsideration by a quorum of at least three members, the Court characterized the Board's effort to operate via two member quorum as “a tail that would not only wag the dog, but would continue to wag after the dog died.” Not surprisingly, the majority ruling is accompanied by a bitter dissenting opinion.
The impact of the ruling remains to be seen. The NLRB immediately issued a press release in which it confirmed the current four-member Board will do its best to rectify the situation in accordance with the Supreme Court's ruling. The current four-member Board should be expected to revisit the rulings sent back by the Supreme Court decision. The level of review and process to achieve it remains to be seen. This will certainly swamp the Board with work involving old rulings on old cases at a time when newer cases and arguments for change in NLRB rules are also at play. When coupled with the fact that the Board stands to lose three of the four members in coming months unless there is Senate confirmation, the situation now facing the NLRB is indeed dire.
The situation is not one that advocates of labor law reform expected with the current Administration. The ruling may well discourage unions, employees, and employers from going to the NLRB for assistance with labor issues as well as complicate those issues and cases already pending with the Board.
Employers with recent NLRB issues should stay tuned to see how this situation develops.
In the Supreme Court's 5-4 ruling, signaling a deeply divided decision, the majority expressed that the Board lacked authority to decide cases with only two members, and instead, confirmed that three sitting Board members are required for a quorum. In sending the hundreds of decided cases back to the NLRB for reconsideration by a quorum of at least three members, the Court characterized the Board's effort to operate via two member quorum as “a tail that would not only wag the dog, but would continue to wag after the dog died.” Not surprisingly, the majority ruling is accompanied by a bitter dissenting opinion.
The impact of the ruling remains to be seen. The NLRB immediately issued a press release in which it confirmed the current four-member Board will do its best to rectify the situation in accordance with the Supreme Court's ruling. The current four-member Board should be expected to revisit the rulings sent back by the Supreme Court decision. The level of review and process to achieve it remains to be seen. This will certainly swamp the Board with work involving old rulings on old cases at a time when newer cases and arguments for change in NLRB rules are also at play. When coupled with the fact that the Board stands to lose three of the four members in coming months unless there is Senate confirmation, the situation now facing the NLRB is indeed dire.
The situation is not one that advocates of labor law reform expected with the current Administration. The ruling may well discourage unions, employees, and employers from going to the NLRB for assistance with labor issues as well as complicate those issues and cases already pending with the Board.
Employers with recent NLRB issues should stay tuned to see how this situation develops.
