In a 5-4 decision (PDF) issued this morning, the Supreme Court ruled that more than 600 cases decided by two members of the National Labor Relations Board are invalid and will need to be re-opened. That means more than two years’ worth of work by the NLRB is out the window, leaving thousands of workers in limbo. The NLRB excerpted the relevant sections of the decision and the dissent:
The 5-4 decision authored by Justice Stevens concluded, “We are not insensitive to the Board’s understandable desire to keep its doors open despite vacancies. Nor are we unaware of the costs that delay imposes on the litigants. If Congress wishes to allow the Board to decide cases with only two members, it can easily do so. But until it does, Congress’ decision to require that the Board’s full power be delegated to no fewer than three members, and to provide for a Board quorum of three, must be given practical effect rather than be swept aside in the face of admittedly difficult circumstances.”
In writing the dissent, however, Justice Kennedy said, “the objectives of the statute, which must be to ensure orderly operations when the Board is not at full strength as well as efficient operations when it is, are better respected by a statutory interpretation that dictates a result opposite to the one reached by the Court.”
The case in question was New Process Steel v. NLRB; with two members, the NLRB decided to recognize a union at the Indiana plant of New Process Steel. The company challenged the authority of the Board (supported by the US Chamber of Commerce, of course), and the Court ended up siding against the NLRB.
The NLRB was hobbled for 27 months with just two of its five members; the Board operated at this diminished capacity for the last year of George W. Bush’s term, and more than a year under President Obama. Essentially, the two board members, Democrat Wilma Liebman and Republican Peter Schaumber, knew that they wouldn’t get any reinforcements and made the decision – with the counsel of both the NLRB lawyers and the Department of Justice – to proceed to hear more than 600 cases and issue decisions without a third member. Any decision issued was done so with a 2-0 vote. Cases in which Liebman and Schaumber disagreed were shelved. And even if another member was added who dissented was on the Board, cases in which Liebman and Schaumber agreed would have been 2-1. Yet Justice Stevens, joined by Alito, Thomas, Roberts, and Scalia, ruled that any case decided by just two members of the NLRB is invalid and should be reopened, wiping out two years of decisions by the already beleaguered NLRB. Kennedy dissented with Breyer, Ginsburg, and Sotomayor.
So what’s next for the NLRB? For the 600 overturned cases, the Board must now figure out a process to reopen the decisions as well as scheduling any pending decisions shelved by the two member board, in addition to new cases since March. It’s a daunting task for the NLRB, its members, and its staff that were just beginning to get their groove back with an operational member board.
The Board now has four members, following recess appointments of Craig Becker and Mark Pearce in March. But that’s only for the next month and a half: Peter Schaumber’s term expires in August. As Kim Freeman Brown of American Rights at Work put it:
Now hundreds of decisions in cases already decided by the NLRB will have to be re-opened, needlessly delaying finality for workers who were led to believe they already had it.
Today’s Supreme Court decision should be a wake up call for President Obama and the Democratic caucus of the Senate, which will need to swiftly move to keep the Board operational after August. There’s also the matter of first nominating, and then appointing or confirming, someone to be the NLRB’s General Counsel, as the man currently in that role, Ronald Meisburg, basically skipped town to join a unionbusting firm.
If neither Obama nor the Senate acts, the NLRB will be completely vacant by the end of next year. It will be a ghost town. Maybe the Obama administration can throw a bone to the “absolute idiots” at the “Washington special interests” in labor unions and get the NLRB up to full capacity. After all, it was Supreme Court Chief Justice who asked an important question while hearing the NLRB case:
The last twist of the knife comes from straight the chief justice, who asks mildly, “And the recess appointment power doesn’t work why?” Katyal admits that the recess appointments process, which allows the president to fill up the board with his temporary appointments while the Senate is out of session, works just fine. It’s the president who has been unwilling to pull the trigger.
President Obama: pull the trigger.