- The Washington Times - Thursday, June 26, 2014

Whatever the constitutional issues at stake, the Supreme Court’s highly charged decision on presidential recess powers Thursday means administrative headaches and legal confusion for the National Labor Review Board.

The agency that referees labor management and union organizing disputes now must gauge the impact after the justices unanimously ruled that President Obama’s appointments to the NLRB in 2012 and 2013 were invalid, as were all the decisions they helped hand down while serving.

This means hundreds of contentious cases between employers, unions and employees that were settled or in the process of appeal could be moving back to square one. Experts say the ripple effect for employers, workers and unions seeking legal clarity is huge.

The NLRB has long been a slow and understaffed agency, serving as a point of tension between those who seek to protect workers’ rights and employers complaining of union abuses. The board has trouble filling its five seats, which have only been full since the Senate last confirmed members in July 2013, after the period of the invalidated appointments.

“The agency is committed to resolving any cases affected by today’s decision as expeditiously as possible,” NLRB Chairman Mark Pearce said in a statement.

Among the cases affected by Thursday’s decision involves Maria Yliquin and Esam Amireh, who are now facing the realization that years of litigation have been made meaningless.

Ms. Yliquin and Mr. Amireh were longtime employees of D.C. supermarket Super Fresh when it was bought by Fresh & Green’s in 2009. In total, Mr. Amireh worked at the location for about 36 years and Ms. Yliquin for about 15 years.

“They were good employees, long-term,” Carey Butsavage, a lawyer who represents the United Food & Commercial Workers (UFCW) International Union in the case, said.

Both employees belonged to the UFCW, and both used union representatives to protest when the new management from Fresh & Green’s resisted employee requests. Each employee became outspoken about an issue — Mr. Amireh about conflicts with his schedule and Ms. Yliquin about employee health insurance — and when the store, citing lax business, began laying off workers, they were among the first to go.

In June 2013, after two years of litigation, both were found to be wrongfully fired by Fresh & Green’s. The company then appealed the case to the D.C. Circuit Court, where it hung, in limbo, as recess appointment case made its way to the high court. Now, the Circuit Court is likely to send the case back to the NLRB to be reheard, restarting the whole process, Mr. Butsavage said.

“What that means is more delay,” he said. “There are already intolerable delays for employees trying to exercise their labor rights under NLRB.”

Since 2003, the board has only had full membership for roughly 3 years total. From 2008 to mid-2010, the board only had two members, below the minimum threshold of three it needs to operate and hear cases.

Brigham Cheney, an attorney specializing in labor and employment law with Paul Hastings LLP, said the Supreme Court finding amounted to a “crisis in the board.”

In the immediate term, the NRLB will be swamped with work. Several challenges to NLRB decisions have been in limbo, according to NLRB’s spokesman Gregory King.

“There were about 100 cases in federal appellate court that challenged decisions made by recess appointees,” Mr. King said.

Ms. Yliquin and Mr. Amireh may have to wait two more years, but Mr. Butsavage said he will continue to pursue litigation for the UCFW.

“We’re going to continue to fight,” he said.

Mr. Cheney said it was likely that the decisions of the current board would be similar to the decisions of the recess appointees, because the members of the two boards have similar political leanings. Mr. Butsavage said he was also confident the case would end up in his client’s favor.

“I have absolutely no doubt in my mind that the board will do the same thing they did in the original decision,” Mr. Butsavage said. “The original decision of the NLRB was grounded in fact and in the law.”

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