Jun 18, 2010

Supreme Court Says Two-Member NLRB Had No Authority to Issue Decisions

The Supreme Court has ruled that the National Labor Relations Board (NLRB), the administrative body that decides representation and unfair labor practices cases, had no authority to issue decisions while it had only two members. For more than two years, the NLRB (which ordinarily has five members) was down to two members, one Republican and one Democrat. These two members decided about 600 cases in which they could agree on the outcome; if the panel split, no decision was issued.

The dispute before the Supreme Court was over the interpretation of a provision of the National Labor Relations Act that gives the NLRB the authority to delegate its powers to a quorum of at least three members -- and, that once such a three-member group has been designated to handle certain issues, two of its members may constitute a quorum as to those issues. Confused? So were the federal Courts of Appeal, which split as to whether this provision allowed the NLRB to decide cases with only two members or required at least three members. (See my previous post for a few more details on this dispute.)

In the Supreme Court case, New Process Steel v. National Labor Relations Board, five Justices found that the provision about two members acting was effective only if everyone in the three-member quorum was still on the Board. So, for example, if a three-member quorum had properly been delegated the right to hear cases, and one of the members had to recuse him- or herself from hearing a particular case (say, because of a conflict of interest), the remaining two members could issue a decision -- but only if the third member was still on the Board. Once the Board had only two members, they were no longer authorized to issue decisions.

But they did anyway. Which raises the question: What about those 600 or so decisions? Can the party that lost go back and reopen the case? If so, where should those cases be heard -- by the now four-member NLRB? In federal court? And what of the parties who have had to act in accordance with the rulings of the now-declared illegitimate two-member "rump" by, for example, recognizing a union or losing an unfair labor practice case? 

Lots of questions, and not so many answers just yet. There's a nice analysis of the issues over at SCOTUSBLOG. The post points out that the NLRB has issued a statement saying that it expects all pending appeals of two-member Board decisions to be remanded to the Board, so it can "further consider" and resolve them. However, it's still unclear how the many more cases that are now done and dusted -- either because they were never appealed or because the appeal has been decided -- will be dealt with.