Monday, November 2, 2009

Supreme Court to consider validity of two-member NLRB rulings

The Supreme Court granted cert today in New Process Steel v NLRB to consider whether a two-member panel of the National Labor Relations Board has authority to hear cases and issue orders regarding unfair labor practice charges.

Dozens of Board decisions have been appealed to the federal courts of appeals on the two-member question. Decisions have been split; the current score is 3-1 in favor of Board authority. In New Process Steel, the Seventh Circuit held the plain meaning of the NLRA supported the NLRB’s delegation of authority to a two-member quorum. The First and Second Circuits joined the Seventh Circuit, holding in the Board’s favor, while the District of Columbia Circuit, in Laurel Baye Healthcare v NLRB, ruled the Board did not have statutory authority to act. Additional decisions on the issue are pending in several circuits.

The NLRB has asked the Supreme Court to settle the question. The U.S. Solicitor General filed a petition for cert in Laurel Baye on the Board’s behalf, seeking reversal of the DC Circuit’s holding. The Court instead granted cert in New Process Steel, consolidating Laurel Baye and several other petitions filed on rulings on this issue. The question presented:

“Does the National Labor Relations Board have authority to decide cases with only two sitting members, where 29 U.S.C. § 153(b) provides that `three members of the Board shall, at all times, constitute a quorum of the Board’?”

The NLRB has been operating with only two members for nearly two years. Rather than cease functioning, Chairman Wilma Liebman, a Democrat, and Member Peter Schaumber, a Republican, have continued to issue decisions in matters on which they can agree. The Board acted on the advice of the Justice Department’s Office of Legal Counsel, which concluded that “if the Board delegated all of its powers to a group of three members, that group could continue to issue decisions and orders as long as a quorum of two members remained.” The Board made such a delegation in December 2007, and since that time Liebman and Schaumber, acting as a quorum, have issued nearly 500 decisions.

A decision from the High Court will bring essential clarification to the issue, the two Board members noted. “We continue to believe that our position is correct, and hope that a decision from the high court will bring some finality to these cases,” said Liebman. Added Schaumber: “It is critical to the agency’s mission that this issue be decided.”

Meanwhile, Liebman is hoping the question will soon cease to matter going forward. Three Board nominees are currently awaiting Senate confirmation. The Senate HELP Committee cleared the nominees last month, approving Democrat Mark Pearce and Republican Brian Hayes in a unanimous voice vote. The more controversial nominee, SEIU associate general counsel Craig Becker, was approved by a 15-8 vote. Liebman said she is “hopeful that they will be confirmed soon and we can resume operations as a five-member Board.” But Senator John McCain (R-Ariz) has placed a hold on Becker’s nomination, delaying a full Senate vote on the slate. That means Liebman and Schaumber will be lonely, overworked, and in legal limbo for a while longer.

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