- The Washington Times - Saturday, May 2, 2009

Decisions made during the past year by the leading federal agency that referees labor-management disputes fell under a legal cloud Friday with conflicting federal appeals court rulings.

In rulings rendered virtually simultaneously, the U.S. Court of Appeals in Washington held that a decision handed down last year by the National Labor Relations Board (NLRB) is invalid because it was made by just two members, while a federal appellate court in Chicago took the opposite position. It held within the same hour that a vote by the two members was appropriate and binding.

The NLRB has a relatively innocuous name. But in truth, the agency has historically gotten caught in the middle of the inevitable tug of war that accompanies change in the Washington power curve: Republican administrations typically favor appointing people with a pro-business bent and Democrats have been inclined to name pro-labor individuals.

When at full strength, the NLRB has five members. But it has operated with only two members and three vacancies for more than a year because Democrats who retook control of Congress in 2006 objected to President George W. Bush’s labor policies and refused to confirm his nominees.

With the appeals court decisions at odds, the Supreme Court is more likely weigh in on appeal. The result could potentially have a wide impact, since the two board members have decided hundreds of cases.

NLRB Chair Wilma B. Liebman, a Democrat, said she and fellow board member Peter C. Schaumber, a Republican, have worked to keep the board running even as it was short-staffed. She said they have issued about 400 decisions in the past 16 months.

“Member Peter Schaumber and I have been dedicated to resolving cases and to avoiding a decisional backlog,” Ms. Liebman said.

Ms. Liebman noted that President Obama has announced his intention to nominate two labor lawyers to the NLRB and she hoped that would soon bring the board “out from under the current legal cloud.” She said she and Mr. Schaumber would consider what options they have in the meantime to deal with cases pending before them.

Clark University industrial relations professor Gary Chaison called the situation “a terrible mess.”

While he said he couldn’t think of a major precedent-setting ruling within the past year, Mr. Chaison also said that hundreds of small procedural changes and individual remedies will now be brought into question.

“It’s like an attempt to unravel history,” Mr. Chaison said. “Unions can claim that organizing contests they’ve lost can be reversed. Workers who have been reinstated with back pay during organizing drives now might have to argue those cases all over again.”

The NLRB is an independent federal agency created by Congress in 1935 to administer the National Labor Relations Act, the primary law governing relations between unions and employers. The five members are nominated to five-year terms by the president and must be confirmed by the Senate.

From 2004 to 2007, union leaders and labor advocates denounced the Bush-dominated board, which reversed several pro-labor precedents from the Clinton era and issued a number of decisions favoring employers.

The issue of whether just two members can make decisions is being litigated in several other appeals around the country, with one prior opinion out of the Court of Appeals located in Boston siding with the NLRB.

Former NLRB Chairman Robert J. Battista, a Bush appointee who now is an attorney in private practice, said the consequences may not be too dire. He noted that the Washington court’s decision suggests that once the board has enough members, it could simply go back and ratify or otherwise reinstate those opinions decided by only two members.

“The new member is obviously going to have to go through those cases and see if he agrees,” Mr. Battista said. “I think that’s what the court’s inviting.”

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