National Labor Relations Board decisions were illegal, Supreme Court rules

By Peter Whoriskey and Sonja Ryst
Washington Post Staff Writer
Friday, June 18, 2010; A12

Hundreds of recent federal rulings in disputes between unions and employers could be reopened after the Supreme Court said on Thursday that it was illegal for the National Labor Relations Board to decide the cases with only two sitting members.

The case before the court turns on an attempt by the NLRB to operate with only two of its five seats filled because of gridlock over presidential nominees, and it highlights the way political divisions in Congress interfere with basic government functions.

Before the board's membership shrunk to two after stalled appointments by President Bush and then President Obama, members recognized that they would soon be shorthanded. They voted to delegate authority to the reduced board in order to keep moving the cases, which involve a variety of disputes between employees and employers over wages, working conditions, union organizing and contracts.

But in the 5-4 court decision, the majority called the board's attempt to keep functioning a "Rube Goldberg-style delegation mechanism . . . surely a bizarre way for the Board to achieve the authority to decide cases." The opinion was written by Justice John Paul Stevens, one of the court's most liberal members, who was joined by its most conservative voices, Chief Justice John G. Roberts Jr. and justices Antonin Scalia, Samuel A. Alito Jr. and Clarence Thomas.

Now thrown into doubt are the approximately 600 cases decided during the 27 months when the board had only two members.

Whether or not the two-member board had the authority to rule is the basis for legal challenges in five other NLRB cases pending before the Supreme Court and 69 pending before appeals courts. The NLRB, which will probably have to reconsider those 74 cases, is planning how to handle the others.

"What happened here is emblematic of the politics of the last three years," said the board's current chairman, Wilma B. Liebman, a Democrat. "We thought we were doing the right thing to keep the agency running."

She said the board will abide by the ruling. The board now has four members -- three Democrats and one Republican -- after Obama made two recess appointments in March.

For months, Liebman and board member Peter C. Schaumber, a Republican, ruled on hundreds of cases on which they could agree. Liebman said they were trying to bring finality to the people involved.

But the bipartisan duo set aside about 60 cases in which they were deadlocked. They also set aside another 60 cases that they thought would set legal precedent.

The delays in Congress's approval of board nominees are "unfortunate for the institution, the process and the parties," Liebman said. "In many cases, it involves people's lives and livelihoods."

Labor groups lamented the Supreme Court ruling as another successful delay tactic by companies seeking to thwart unions.

"As has become the norm, workers are once again penalized by corporate stall tactics," the AFL-CIO general counsel Lynn Rhinehart said in a statement. "We regret that as a result of the Court's decision, workers in these cases will have to wait longer still for justice."

But business groups said they favor having a working board, too.

"People in the business community aren't opposed to having a functioning NLRB," said Katie Packer, executive director of the Workforce Fairness Institute. She said businesses want to have an agency that can go after "the bad actor" with regard to labor, but they're opposed to big labor using the stalemate at the NLRB to its advantage.

The case in question involved a steel-processing plant in Indiana where a dispute developed between the company and the International Association of Machinists over whether a contract was binding. Liebman and Schaumber ordered the company, New Process Steel, to recognize the contract.

"The decision was handed down by two people who said they were compromising in their decisions in order to keep the doors open at the NLRB," said Austin attorney Sheldon E. Richie, the attorney for New Process Steel. "That is just not good due process. The reason we have odd numbers on a court is that you can have a chance for a vigorous debate."

The board worked with only two members for more than two years because Democrats blocked President Bush's nominees on complaints that they were biased in favor of business. Then Republicans blocked President Obama's nominees, complaining that they were biased in favor of union interests.

Among the board decisions likely to be revisited is one involving the employees at a nursing home and long-term care facility in St. Petersburg, Fla., called Shore Acres. They voted to join the United Food and Commercial Workers International Union in December 2007. Their employer filed 13 objections with the NLRB and lost.

Instead of negotiating with the workers as a union, Shore Acres appealed the NLRB's decision and lost again in March 2008. The company then went to the U.S. Court of Appeals in June 2009 and lost.

After Thursday's ruling in the Supreme Court, the NLRB might have to review the Shore Acres case all over again.

"Justice is again delayed and denied," said Kimberly Freeman Brown, executive director of American Rights at Work, a union advocacy group based in the District. "That's the impact of the Supreme Court decision."

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