In a 5-4 decision, the U.S. Supreme Court ruled that the National Labor Relations Board (NLRB) cannot decide cases when it consists of just two board members. For more than two years the NLRB operated as a two-person board with three seats unfilled.  The two-member board-made up of one Democrat and one Republican-issued nearly 600 decisions. Before today, five federal appeals courts ruled that cases decided by the two-member board were valid.

In March, President Ohama used recess appointments to fill two seats after Republican senators blocked President Obama’s nominees for months.

Several employers objected to the two-person decisions and the Supreme Court agreed to review the issue in a case brought by New Process Steel. Says AFL-CIO General Counsel Lynn Rhinehart:

As has become the norm, workers are once again penalized by corporate stall tactics. By the barest of majorities, five justices rewarded New Process Steel and other corporations who challenged the two-member NLRB decisions as a delay method to avoid respecting workers’ rights.

Workers in these cases now face further delay as the NLRB is forced to sort out and deal with the impact of the court’s decision.  The AFL-CIO supported the NLRB’s position in this case and believes the NLRB had the far better argument.  We regret that as a result of the court’s decision, workers in these cases will have to wait longer still for justice.

According to BNA’s Daily Labor Report, in March 2003, the Justice Department’s Office of Legal Counsel issued a memorandum finding that “if the Board delegated all of its powers to a group of three members, that group could continue to issue decisions and orders as long as a quorum of two members remained.”

In December 2007, when the NLRB had four sitting members and the terms of two of them were set to expire, it delegated its authority to a group of three or more members.

As the AFL-CIO brief supporting the NLRB points out:

The long and the short of the matter is that Congress has provided that once the full Board has delegated Board decision making powers to a designated groups of three or more members [which the Board did in December of 2007], two members of that groups may exercise the delegated powers….

In his dissenting opinion Justice Anthony Kennedy wrote

….the objectives of the statute, which  must be to ensure orderly operations when the Board is not at full strength as well as efficient operations when it is, are better respected by a statutory interpretation that dictates a result opposite to the one reached by the Court.

Kimberly Freeman Brown, Executive Director of American Rights at Work, says today’s ruling, “after fierce corporate pressure,”

….adds insult to injury for thousands of workers across America.. . . Decisions in cases already decided by the NLRB will have to be re-opened, needlessly delaying finality for workers who were led to believe they already had it.

Notwithstanding today’s developments, the NLRB must still address serious issues faced by workers in this economy by enacting tougher remedies on lawbreaking employers, demanding swift justice for illegally fired workers, and protecting workers’ rights to a first contract to the fullest extent of the law.

Justice John Paul Stevens wrote the court’s opinion, and was joined by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito. Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor joined with Kennedy’s dissent.