Castagnera on Legal Rights

Chaos at the Labor Board? June 19, 2010

The law firm of Morgan Lewis reports the following new Supreme Court decision:
“U.S. Supreme Court Rules 5-4: Two-Member National Labor Relations Board Lacked Authority to Act

In New Process Steel, L.P. v. Nat’l Labor Relations Bd., No. 08-1457, decided June 17, 2010, the U.S. Supreme Court held that Section 3(b) of the Taft-Hartley Act requires that the National Labor Relations Board (the Board) maintain a membership of three in order to exercise its authority. This decision places into question the fate of more than 500 cases decided by the two-member Board over a 27-month period, including five other cases pending before the Supreme Court and approximately 70 cases pending before various federal courts of appeals challenging the validity of the two-member rulings.”

This is just the most recent conservative volley in the ongoing labor war between the Dems and the GOP. When the Republicans in the Senate refused to confirm President Obama’s pro-labor nominees for the understaffed NLRB, the Prez used his power of recess appointment to put two Dems on the Board, while declining to elevate the pro-management nominee. (Traditionally the ruling party has three members to the other party’s two at any given time on a fully staffed Board.)

Now, the GOP’s allies on the high court have hurled a rebuke at the pro-labor NLRB chair. As noted above, more than 500 cases decided by the rump Board now may need to be revisited, essentially putting the agency so far behind that it may never dig out. To paraphrase a famous early Supreme Court case, “The power to bury under work is the power to destroy.”