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Supreme Court Sides with Employers in NLRB Case

June 23, 2010

In a 5-4 June decision, the U.S. Supreme Court ruled that the National Labor Relations 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, while Republicans have challenged administration appointees to bring the board up to five members.

The two-member board-made up of one Democrat and one Republican-issued nearly 600 decisions.

Workers impacted by the 600 cases now face further delay as the NLRB is forced to sort out and deal with the impact of the court’s decision. The AFL-CIO supported the NLRB’s position that decisions made by the two-member board were valid. Before the recent decision, five federal appeals courts ruled that cases decided by the two-member board were valid.

In March, President Obama used recess appointments to fill two seats after Republican senators blocked President Obama’s nominees for months.  But the decisions by the two-member court remained under challenge from several employers. The Supreme Court agreed to review the issue in a case brought by New Process Steel. Says AFL-CIO General Counsel Lynn Rhinehart:

As has become the norm, workers are once again penalized by corporate stall tactics. By the barest of majorities, five justices rewarded New Process Steel and other corporations who challenged the two-member NLRB decisions as a delay method to avoid respecting workers’ rights.

Kimberly Freeman Brown, Executive Director of American Rights at Work, says:

The ruling adds insult to injury for thousands of workers across America. Decisions in cases already decided by the NLRB will have to be re-opened, needlessly 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 Antonin Scalia, Clarence Thomas and Samuel Alito. Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor joined with Kennedy’s dissent.

President Edwin D. Hill says:

Among the NLRB decisions that are now tied up in knots by this Supreme Court decision are some that could delay justice in the workplace for IBEW members or prospective members. With midterm elections approaching, it is important for every union member to consider the consequences of voting for candidates who support moving the Supreme Court further in the direction of rubber-stamping the agenda of big business.

Photo used under a Creative Commons license from BAR Photography.