Will Republicans shut down the NLRB?

We know after New Process Steel the NLRB has to have 3 members to have a quorum. We also know Member Becker's recess appointment expires when Congress adjourns at the end of the year. Unless there is a confirmation or another recess appointment the NLRB will only have 2 members when Becker's appointment expires. Now some Republicans are urging Member Hayes to resign before the Board can implement controversial changes to the election process used to determine whether workers can unionize their employer's workplace. I think it is very likely Congressional gridlock will prevent the NLRB from having a quorum until some point after the 2012 election.

Two Member NLRB Strategy

With Chairman Liebman leaving the NLRB, and Member Becker's recess appointment running out at the end of the year, some anti-union advocates are now urging Republican Member Bryan Hayes to resign. Why? In order to incapacitate the NLRB by reducing it to two members. In New Process Steel last year the Supreme Court held a two member Board lacks a quorum and cannot lawfully function. To me this is not a strategy, rather it would cynically exploit the ability to create temporary dysfunction, for questionable short term political objectives. But of course the real problem is many on the right don't like the National Labor Relations Act, believe it is unconstitutional (despite a Supreme Court case to the contrary) and want it gone. Although I teach labor law, my practice is one that represent's management interests and has been for 35+ years. Those who call for repeal of the NLRA think they would remove a regulatory barrier. In truth, many on labor's side might join in repeal because repeal would unleash economic weapons favoring labor that could reinvigorate certain strikes and secondary boycotts now made unlawful by the NLRA. Be careful about what you ask for.

NLRB reacts to New Process Steel

The NLRB has issued a press release about what it expects to do with the cases affected by the New Process Steel decision.

New (statutory interpretation) Process

We've just had a quick read of the New Process Steel opinion. Essentially the 5 member majority (Stevens, Roberts, Scalia, Alito, Thomas) reason through the language of §3(b) of the NLRA to conclude the authority of a 3 member delegation of the NLRB ceases to exist when the term of one member of the three expires. I must admit the dissent written by Justice Kennedy (and joined by Ginsburg, Breyer and Sotomayor) makes more sense. The statutory interpretation opinion is less significant that the open questions concerning the 600+ cases decided by the two member NLRB. The NLRB has issued a press release concerning the 5 cases pending before the Supreme Court and the 69 cases pending before the Courts of Appeals. Likely these cases will be remanded to the NLRB.
In New Process, the Supreme Court vacated and remanded. Likely the Court of Appeals will vacate the NLRB decision and remand to the NLRB. (We think this is the likely result in all the pending cases.) But what about the cases that are final? Are the decisions null due to an absence of proper delegation? Or are they final judgments not subject to collateral attack? Would the NLRB entertain a motion to reconsider the final cases. likely not in the later instance since the cases decided were sufficiently non controversial for the two remaining members, one a democrat and the other a republican, to agree on a result. Could the now properly populated Board globally reaffirm the entirety of the two-member decisions? And also what becomes of the other delegations? The majority opinion notes without comment that "the Board delegated to the general counsel continuing authority to initiate and conduct litigation that would normally require case-by-case approval of the Board." Is the general counsel's authority to act defective, and what effect would that have on pending and decided cases.

SCOTUS rejects 2 member NLRB decisions

Hot off the presses (what and odd anachronism), the Supreme Court has rejected the Board's authority to issue 2-member decisions. New Process Steel, L.P. v. NLRB, No. 08–1457. Argued March 23, 2010—Decided June 17, 2010.  I wont have time until later to digest the opinion by Justice Stevens, but the 5-4 decision does create a backlog of now undecided cases. More about this later.

New Process Steel

SCOTUSBLOG reports on Friday the Supreme Court directed the parties to file simultaneous letter briefs in response to Solicitor General Elena Kagan's informing the Court that President Obama had made two recess appointments to the NLRB. Its unclear what this is about. Is the Court inviting the NLRB to cure any problem with 2 member decisions? This invitation would be expected if there was a perceived reason that the Court should not hear the case on the merits. Maybe its just a formal invitation to respond as to the possible effects, without signaling a perception of anything. Approximately 600 Board decisions have been rendered when the NLRB had only 2 members. The case is New Process Steel v. NLRB (docket 08-1457).

2 member NLRB decisions

Workplace Prof's Blog has a great post on the oral argument in New Process Steel.

New Process Steel

Scotusblog has a good post on the Parties arguments in the 2 Member NLRB case set for oral argument on March 23.

Two member NLRB case set for oral argument

The Supreme Court set oral argument in New Process Steel for March 23. The case involves the validity of 2 member decisions by the NLRB. If as reported by the New York Times, President Obama intends to renominate Craig Becker to the NLRB, ensuring further delay in filling the 3 Board vacancies, the case before SCOTUS may affect an increasing number of decisions that will be decided by a two member NLRB.

Two Member Board decision gets SCOTUS review

The Supreme Court today granted certiorari in 08-1457 New Process Steel, L.P. v. NLRB. It is the Seventh Circuit case upholding the NLRB's authority to issue  2 member Board decisions. The NLRB had petitioned for certiorari in Laurel Baye, where the D.C. Circuit had denied enforcement of a 2 member decision holding a two-member panel did not constitute a quorum as required by the National Labor Relations Act (NLRA), previous post here.