NLRB's biggest decision lies ahead

Friday - 6/25/2010, 9:08am EDT

Wilma Liebman, chair, National Labor Relations Board

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By Meg Beasley
Federal News Radio

When the Supreme Court decided last week that almost 600 decisions made by the National Labor Relations Board (NLRB) were invalid, Chairman Wilma Liebman chalked it up as yet another obstacle faced by the board.

"In the last few years we have had a record accumulation of difficulties" she says.

Chief among those difficulties are the fact that the board, which is supposed to have five members, had only two over a course of 27 months beginning in January 2008.

Confirmations in March increased board membership to four.

The Court's 5-4 ruling said NLRB was not authorized to make decisions with only two members.

"If Congress had intended to authorize two members alone to act for the Board on an ongoing basis, it could have said so in straightforward language," Justice John Paul Stevens said.

"Congress instead imposed the requirement that the Board delegate authority to no fewer than three members, and that it have three participating members to constitute a quorum."

Liebman says the political turmoil that always seems to surround NLRB makes "operating here and doing what we are supposed to do, which is to resolve disputes involving labor and business, it makes our job very difficult."

Political stalemates over nominations made by both Presidents Bush and Obama left empty seats on the board for over two years.

Empty seats didn't mean empty dockets, though, and the two member board "made the decision to continue issuing decisions as a two-member quorum of a former three-member Board," according to a statement by board member Peter Schaumber.

Both Schaumber and Liebman say they took care to set aside cases in which they could not reach consensus or decisions would have established new board law or overturned precedent. Despite the precautions, all of the nearly 600 cases they did decide must be reopened.

Liebman says the board is not yet sure exactly which cases it will hear, but "it will be a lot of work." About 70 cases are pending in the court of appeals. Leibman says it is also possible that some parties will decide it is not worth their time and expense to return to trial and simply abide by the original ruling.

The board has begun discussions about how to proceed with the returning cases, but Liebman says it would be premature to speculate on exactly how they will proceed.

Meg Beasley is an intern with Federal News Radio.