July 2, 2010:NWLP
6/29/10
9:57 AM
Page 9
Supreme Court sides with
employers in NLRB case
WASHINGTON, D.C. — In a 5-4
decision June 17, the U.S. Supreme
Court ruled that the National Labor Re-
lations Board (NLRB) cannot decide
cases when it consists of just two board
members.
For more than two years the NLRB
operated as a two-person board with
three seats unfilled. The two-member
board — made up of one Democrat and
one Republican — issued nearly 600
decisions. Before this ruling, five federal
appeals courts ruled that cases decided
by the two-member board were valid.
In March, President Obama used re-
cess appointments to fill two seats after
Republican senators blocked his nomi-
nees for months.
Several employers objected to the
two-person decisions, and the Supreme
Court agreed to review the issue in a
case brought by New Process Steel.
“As has become the norm, workers
are once again penalized by corporate
stall tactics,” said AFL-CIO General
Counsel Lynn Rhinehart. “By the barest
of majorities, five justices rewarded
New Process Steel and other corpora-
tions who challenged the two-member
NLRB decisions as a delay method to
avoid respecting workers’ rights.”
Rhinehart said workers in these
cases now face further delay as the
NLRB is forced to sort out and deal
with the impact of the high court’s de-
cision.
“The AFL-CIO supported the
NLRB’s position in this case and be-
lieves the NLRB had the far better ar-
gument,” she said. “We regret that as a
result of the court’s decision, workers
in these cases will have to wait longer
still for justice.”
According to the Bureau of National
Affairs Daily Labor Report, in March
Senate confirms
two to NLRB posts
2003, the Justice Department’s Office
of Legal Counsel issued a memoran-
dum finding that “if the Board dele-
gated all of its powers to a group of
three members, that group could con-
tinue to issue decisions and orders as
long as a quorum of two members re-
mained.”
In December 2007, when the NLRB
had four sitting members and the terms
of two of them were set to expire, it del-
egated its authority to a group of three
or more members.
As the AFL-CIO brief supporting
the NLRB points out: “The long and
the short of the matter is that Congress
has provided that once the full Board
has delegated Board decision making
powers to a designated groups of three
or more members [which the Board did
in December of 2007], two members of
that groups may exercise the delegated
powers ... .”
In his dissenting opinion, Justice
Anthony Kennedy wrote: “The objec-
tives 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 bet-
ter respected by a statutory interpreta-
tion that dictates a result opposite to the
one reached by the Court.”
Kimberly Freeman Brown, executive
director of American Rights at Work,
said the ruling, “after fierce corporate
pressure,” adds insult to injury for thou-
sands of workers across America ... de-
cisions in cases already decided by the
NLRB will have to be re-opened, need-
lessly delaying finality for workers who
were led to believe they already had it.”
Justice John Paul Stevens wrote the
court’s opinion, and was joined by Chief
Justice John Roberts and Justices An-
tonin Scalia, Clarence Thomas and
Samuel Alito. Justices Ruth Bader Gins-
burg, Stephen Breyer and Sonia So-
tomayor joined with Kennedy’s dissent.
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The U.S. Senate on June 22 con-
firmed Democratic union lawyer Mark
Pearce and Republican Senate aide
Brian Hayes to full terms on the Na-
tional Labor Relations Board.
Not confirmed with them was Craig
Becker. President Obama nominated all
three men last year, but Republicans
have united in opposing Becker be-
cause he has worked as an attorney for
the AFL-CIO and the Service Employ-
ees International Union.
In April, Obama made Becker and
Pearce recess appointments, a practice
used by presidents when the Senate
doesn’t act on nominations. Becker can
only serve through the end of the next
Senate session, at the end of 2011.
With the confirmation of Pearce, he
will serve a five-year term.
It is the first time since December
2007 that all five seats have been filled.
However, last month NLRB General
Counsel Ron Meisburg announced his
resignation, effective June 20.
JULY 2, 2010
NORTHWEST LABOR PRESS
PAGE 9