Supreme Court rules that 2 members (out of 5) cannot function as the NLRB; overturns more than 500 decisions

The National Labor Relations Board (NLRB) is a 5-member board empaneled to . The board members have been reaching the ends of their terms and new nominees have been advanced to Congress to replace them. When President Bush submitted nominees to be confirmed, however, the Democrat-led Congress refused to do so. They considered the nominees to be too “pro-business” and blocked any vote to confirm or deny them. They continued to stick to that blocking technique even after 2 and then 3 members of the Board left. When the 2008 elections brought Barak Obama to the White House, he advanced new nominees but the GOP in Congress, adopting the technique Democrats had held to for years, issued blocks of their own. For 2 years, the NLRB had only 2 members – 1 appointed by Democrats and 1 by Republicans. As they continued to issue rulings a challenge was made that asked whether a 2-member Board was even legally permitted to do business.

Yesterday, the Supreme Court issued their ruling: they said “No.”

“If Congress had intended to authorize two members alone to act for the board on an ongoing basis, it could have said so in straightforward language,’’ Stevens said. “Congress instead imposed the requirement that the board delegate authority to no fewer than three members, and that it have three participating members to constitute a quorum.’’

Allowing two members to run the agency because Congress and the White House cannot agree on new members would be letting the board “create a tail that would not only wag the dog, but would continue to wag after the dog has died,’’ Stevens said.

The decision means that more than 500 of employee-employer cases decided by the NLRB while its membership had dropped to two must now be reopened by the board, which currently has four members.

This raises all kinds of concerns, now. Every one of the over 500 cases decided by the NLRB during that period when only 2 members were on the Board must now be re-opened and decided again. Skipping over the obvious point that the NLRB’s case load just jumped over 500 cases overnight and that this will represent a huge strain on their resources, what about the people who have gotten on with life and business after one of those rulings was decided. Literally everything a given business or person did since their decision was rendered was formed by that decision, either “for” them or “against” them. A business might have expanded or declined to expand based on that decision, which now must be reconsidered. A person might have pursued a different career track based on the decision they were handed, potentially giving up benefits they might otherwise have retained.

Now, just because a case is re-opened doesn’t mean it’ll be decided differently. A business that was ruled against might still have that ruling applied after a re-hearing. The point is the uncertainty that’s being introduced – again – by this process. It’s going to be a busy time over at the NLRB for a while.

(Hat Tip: Brian Schoeneman, of Common Sense)