Courts issue opposing opinions on NLRB

Decisions made during the last year by the leading federal agency that referees labor-management disputes fell under a legal cloud Friday with conflicting federal appeals court rulings.

In rulings rendered virtually simultaneously, the U.S. Court of Appeals in Washington held that a decision handed down last year by the National Labor Relations Board is invalid because it was made by just two members, while a federal appellate court in Chicago took the opposite position. It held within the same hour that a vote by the two members was appropriate and binding.

The NLRB has a relatively innocuous name. But in truth, the agency has historically gotten caught in the middle of the inevitable tug of war that accompanies change in the Washington power curve; Republican administrations typically favor appointing people with a pro-business bent, and Democrats have been inclined to name pro-labor individuals.

When at full strength, the NLRB has five members. But it has operated with only two members and three vacancies for more than a year because Democrats who retook control of Congress in 2006 objected to President Bush’s labor policies and refused to confirm his nominees.

With the appeals court decisions at odds, the U.S. Supreme Court is more likely to weigh in on appeal. The result could have wide repercussions, because the two members have decided hundreds of cases.

NLRB Chairwoman Wilma Liebman, a Democrat, said she and fellow board member Peter Schaumber, a Republican, worked to keep the board running even as it was short-staffed. She said they issued about 400 decisions in the last 16 months.

“Member Peter Schaumber and I have been dedicated to resolving cases and to avoiding a decisional backlog,” Liebman said.

Liebman noted that President Obama has announced his intention to nominate two labor lawyers to the NLRB and she hoped that would soon bring the board “out from under the current legal cloud.” She said she and Schaumber would consider what options they have in the meantime to deal with cases pending before them.

Gary Chaison, an industrial relations professor at Clark University in Worcester, Mass., called the situation “a terrible mess.”

While he said he couldn’t think of a major precedent-setting ruling within the last year, Chaison said hundreds of small procedural changes and individual remedies will now be brought into question.

“It’s like an attempt to unravel history,” Chaison said. “Unions can claim that organizing contests they’ve lost can be reversed. Workers who have been reinstated with back pay during organizing drives now might have to argue those cases all over again.”

The NLRB is an independent federal agency created by Congress in 1935 to administer the National Labor Relations Act, the primary law governing relations between unions and employers. The five members are nominated to five-year terms by the president and must be confirmed by the Senate.

From 2004 to 2007, union leaders and labor advocates denounced the Bush-dominated board, which reversed several pro-labor precedents from the Clinton era and issued a number of decisions favoring employers.

The issue of whether just two members can make decisions is being litigated in several other appeals around the country, with one previous opinion out of the Court of Appeals in Boston siding with the NLRB.

Former NLRB Chairman Robert Battista, a Bush appointee who now is an attorney in private practice, said the Washington court’s decision suggests that once the board has enough members, it could go back and ratify or otherwise reinstate those opinions decided by only two members. “The new member is obviously going to have to go through those cases and see if he agrees,” he said. “I think that’s what the court’s inviting.”