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Appellate court opinions create a mess on NLRB rulings

Confusion reigns over the validity of last year's decisions by National Labor Relations Board. From AP, May 1:

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 is invalid because it was made by just two members while a federal appellate court Chicago took the opposite position. It held within the same hour that a vote by the two members was appropriate and binding.

The NLRB statutorily comprises five members, but Senate Democrats last year would not consider Bush nominees, effectively running out the clock until Barack Obama's election.

The two cases:

  • Laurel Baye Healthcare of Lake Lanier Inc. v. NLRB, D.C. Cir., No. 08-1214, 5/1/09 (opinion in .pdf)

  • New Process Steel LP v. NLRB, 7th Cir., No. 08-3517, 5/1/09 (opinion in .pdf)

And in March, the First Circuit upheld the validity of two-member rulings: Northeastern Land Services Ltd. d/b/a NLS Group v. NLRB, 560 F.3d 36, 185 LRRM 3390 (1st Cir. 2009) (opinion in .pdf)

As noted in this earlier post, President Obama has nominated a union counsel and a private labor attorney to the empty Democratic positions on the NLRB; no news on a Republican appointee. Since last year's rulings had to be 2-0, theoretically they were noncontroversial, so one possibility is that a full quorum could reaffirm those decisions.

More from The Blog of the Legal Times, and the take-no-prisoners National Right to Work Foundation says the rulings demonstrate the incompetence of the Bush Administration in dealing with the NLRB.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.