U.S. Supreme Court ruling seen unlikely to alter past NLRB decisions

Court's decision will trigger 'short-term chaos' as labour board re-evaluates 1,000 past decisions

WASHINGTON, D.C. (Reuters) — A Supreme Court ruling on Thursday raised questions about the validity of more than 1,000 U.S. National Labor Relations Board (NLRB) decisions, but any cases the board reconsiders will likely end with similar decisions, labour lawyers said.

The court's decision will trigger a period of "short-term chaos" at the NLRB as it reassesses past decisions, said David Murphy, a labor and employment lawyer at Dorsey & Whitney.

But the federal agency, which oversees union elections and polices unfair labour practices, is decidedly an "Obama board" and has firm control over case outcomes and its policy direction, Murphy said.

The Supreme Court ruled that Democratic President Barack Obama in January 2012 made three unlawful "recess" appointments to the five-member NLRB. Often a battleground between pro-labor Democrats and pro-business Republicans, the board's political makeup regularly shifts with control of the White House.

The high court's decision, in Noel Canning v. NLRB, invalidated more than 1,000 of NLRB case decisions because they were made without a valid quorum of at least three board members.

NLRB Chairman Mark Gaston Pearce said in a statement after the court ruled that the board is analyzing the impact of the decision.

"The agency is committed to resolving any cases affected ... as expeditiously as possible," he said.

In practical terms, the board will likely have to redecide some cases, starting with roughly 100 that have been challenged in federal appeals courts, experts said.

But the board now has a full contingent of five Senate-confirmed members including three Democrats. So, based on the board's history, any cases it re-hears are likely — though not certain — to yield the same decision as before, experts said.


Fisher & Phillips attorney Steven Bernstein, who represents employers, said the board's makeup has changed since the recess appointees decided the invalidated cases. There are four new members and two of them are Republicans.

"While many (of the cases) will presumably meet the same fate the second time around, the prospect is by no means a certainty," Bernstein said in an e-mail.

He said employers should monitor how the process plays out as the board could get "bogged down in ... retrospection." He said delays could stymie what business interests have long complained is a pro-worker agenda on the board's part.

A model for the impact of Noel Canning may be provided by another case, New Process Steel v. NLRB. In that case, the Supreme Court determined in 2010 that the board had illegally ruled on roughly 600 cases at a time when it had only two sitting members. It needed a quorum of three.

Wilma Liebman, who chaired the board at that time, said that after the Supreme Court acted, the board issued new decisions with a proper quorum in 100 to 120 cases that had been appealed in federal courts over two-member decisions.

"In most cases, the new decisions and the old decisions were the same, but that wasn't the case in every single case," Liebman said in an interview earlier this year.

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