Supreme Court Ruling Wipes Out 600 NLRB Decisions

[Earth Bound Misfit]

http://workinprogress.firedoglake.com/2010/06/17/supreme-court-ruling-wipes-out-600-nlrb-decisions/

By: Michael Whitney Thursday June 17, 2010 12:45 pm


In a 5-4 decision issued this morning, the Supreme Court ruled that more than 600 cases decided by two members of the National Labor Relations Board are invalid and will need to be re-opened. That means more than two years’ worth of work by the NLRB is out the window, leaving thousands of workers in limbo. The NLRB excerpted the relevant sections of the decision and the dissent:

The 5-4 decision authored by Justice Stevens concluded, “We are not insensitive to the Board’s understandable desire to keep its doors open despite vacancies. Nor are we unaware of the costs that delay imposes on the litigants. If Congress wishes to allow the Board to decide cases with only two members, it can easily do so. But until it does, Congress’ decision to require that the Board’s full power be delegated to no fewer than three members, and to provide for a Board quorum of three, must be given practical effect rather than be swept aside in the face of admittedly difficult circumstances.”

snip

The NLRB was hobbled for 27 months with just two of its five members; the Board operated at this diminished capacity for the last year of George W. Bush’s term, and more than a year under President Obama. Essentially, the two board members, Democrat Wilma Liebman and Republican Peter Schaumber, knew that they wouldn’t get any reinforcements and made the decision – with the counsel of both the NLRB lawyers and the Department of Justice – to proceed to hear more than 600 cases and issue decisions without a third member. Any decision issued was done so with a 2-0 vote. Cases in which Liebman and Schaumber disagreed were shelved. And even if another member was added who dissented was on the Board, cases in which Liebman and Schaumber agreed would have been 2-1. Yet Justice Stevens, joined by Alito, Thomas, Roberts, and Scalia, ruled that any case decided by just two members of the NLRB is invalid and should be reopened, wiping out two years of decisions by the already beleaguered NLRB. Kennedy dissented with Breyer, Ginsburg, and Sotomayor.

So what’s next for the NLRB? For the 600 overturned cases, the Board must now figure out a process to reopen the decisions as well as scheduling any pending decisions shelved by the two member board, in addition to new cases since March. It’s a daunting task for the NLRB, its members, and its staff that were just beginning to get their groove back with an operational member board.

[riverwalker]

1. how many are on the board now?

and why did they have only two for so long?

[Earth Bound Misfit]

2. There's 4 members currently.

http://www.nlrb.gov/About_Us/overview/board/

There's been only 2 members since Dec 2007 when 3 of the 5 members' terms ended. Dumbya's nominations were blocked by the Senate and recess appointments were also blocked when the Senate refused to recess.

In April 2009, President Obama nominated Craig Becker (D), Mark Gaston Pearce (D), and Brian Hayes (R) to fill the three empty seats on the board. Becker's nomination was blocked after the Repukes (led by Gramps McCain) threatened to filibuster his nomination. President Obama recess appointed both Becker and Pearce to the NLRB on March 27, 2010, leaving the Puke (Hayes) behind. Peter Schaumber’s (R) term expires in August, which would leave only the three Dems in place, and I'm not sure how long it takes until the recess appointments expire.

To say that this is a clusterfuck of epic proportions is an obvious understatement.