Board Begins Review of Cases in Light of New Process Steel Remands

Posted on August 9, 2010 by Roger Kaplan

The National Labor Relations Board was told by the U.S. Supreme Court in June that it had lacked authority to issue hundreds of decisions and orders from January 2008 through April 2010 with only two members in office.  At the time of the High Court’s ruling in New Process Steel, L.P. v NLRB, 130 S.Ct. 2645 (2010), nearly 100 cases were pending in the Supreme Court or the courts of appeals involving such Board decisions.  It was clear then that these cases would have to be revisited by the Board having a proper quorum.  That process has now begun.  However, it is hardly reassuring.

On August 5, the Agency issued four brief decisions and orders in these previously heard cases.  In three of them, the courts of appeals had denied enforcement to the Board’s orders on the authority of New Process Steel.  In the fourth, the appellate court had remanded the case to the agency for further proceedings before the case was decided.  The decisions are virtual clones.  Dutifully reciting that the current three-member panel had considered the administrative law judge’s decision in light of the exceptions and briefs (filed earlier), the NLRB panel summarily reaffirmed its previous two-member decision in each of the cases, for the reasons already stated, incorporating by reference the earlier decision in the new determination.  Chairman Liebman and Member Schaumber, who had issued the earlier, defective decisions and orders, were members of the panel in each instance, joined by Member Pearce. They explained:

 

Consistent with the Board’s general practice in cases remanded from courts of appeals, and for reasons of administrative economy, the panel includes the members who participated in the original decision.  Furthermore, under the Board’s standard procedures applicable to all cases assigned to a panel, the Board members not assigned to the panel had the opportunity to participate in the adjudication of this case any time up to the issuance of this decision.

 

This explanation is consistent with a press release issued earlier explaining the Board’s intentions. 

The Board plainly is giving short shrift to its compulsory reexamination.  It is going through the motions.  It is reassigning these matters to the same two members who considered them originally, and evidently is not soliciting any further briefing or argument.  The results are easily foretold.   Rubber stamps are the order of the day.

Does this numbing exercise suffice?  We don’t know, but the Board’s cursory treatment is likely to produce its own spate of appeals.  The circuit courts, and perhaps the Supreme Court, then have a chance to consider whether the Board has made amends for its past mistakes.

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Solicitor General Asks U.S. Supreme Court to Resolve Appeals Court Conflict Over Board Quorum

Posted on October 6, 2009 by Steven Porzio

 With Contributions from Roger Kaplan

The Solicitor General of the United States, on behalf of the NLRB, has filed a petition with the United States Supreme Court, asking the Court to settle the dispute among the Circuit Courts as to whether the NLRB is authorized to render decisions with only two members in office.  The District of Columbia Circuit in Laurel Baye Healthcare v. NLRB this past May had held that the Board lacked such authority. Three other circuits, however, have reached an opposite conclusion (the First, Second and Seventh Circuits, in Boston, New York and Chicago, respectively). The Board in Laurel Baye, and employers in each of the other cases, petitioned the Court for a writ of certiorari to review the particular Circuit Court opinion.

The Board on September 29 asked the Court to determine whether National Labor Relations Act authorizes the agency to act when only two of its five positions are filled, if the Board previously delegated its full powers to a three-member group that included the two remaining members. On the same day, the NLRB responded to the petition in the Seventh Circuit case — New Process Steel — asking the Justices to grant review there, too, on the same issue. 

Since January 2008, the Board has been functioning with only two members, Chairman Wilma Liebman and Member Peter Schaumber. Shortly before, four members, including two recess appointments about to expire, delegated the Board’s powers to a three-member panel; when  Board membership shrank to two, the agency said the NLRA allowed it to operate in that fashion. (Despite professing to carry on its duties as usual, the two-member Board may have been hedging its bets until an undisputed quorum again is present.  Students of the agency have suggested there may have been fewer decisions, and those often are in “soft,” non-controversial cases. In a number of instances, one member or the other has suppressed disagreement with Board precedent “for institutional reasons,” we have been told.)

President Barack Obama has nominated three candidates, including Craig Becker, to fill the empty seats on the Board.  These nominees are awaiting confirmation by the Senate.

In view of the clear conflict among Circuits and the Board’s and the employers’ desire to have the quorum issue settled, not to mention the Second Circuit’s observation that the High Court will have to have the last word on this subject, many believe the Supreme Court will grant certiorari. The Court begins its new Term October 5. 

We will keep you posted.

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