Workload threatens to paralyze labor board

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The National Labor Relations Board (NLB) has identified scores of decisions that must be revisited in the wake of last month’s Supreme Court finding that President Obama appointed members to the board in violation of the Constitution.

The task threatens to serve as a major roadblock in the labor board’s drive to shape national labor policy in the waning years of the Obama administration, experts say.


“It’s hard to drive forward if you’re looking into the rearview mirror,” said Michael Lotito, an employment and labor attorney and co-chairman of Littler Mendelson's Workplace Policy Institute.

NLRB spokesman Tony Wagner said the board has identified roughly 100 decisions that must be reviewed in the wake of the high court’s ruling in the case known as National Labor Relations Board v. Noel Canning.

In the case, the Supreme Court concluded that Obama overstepped by purporting to use his recess appointment power to fill vacancies on the labor board two years ago when the Senate maintained it was in a “pro-forma” session.

The number of cases designated for review, as a consequence, is far fewer than once thought. Early estimates were that the ruling could throw into question more than 400 cases from the period between January 2012, when the appointments were made, and August 2013, when the Senate approved new board members.

But Wagner said review is only needed for the cases that were decided by the members of the board whose appointments were invalidated. Many of the applicable board’s decisions were under appeal in federal circuit courts, which largely held them in abeyance pending the outcome of the Supreme Court fight.

Now, the NLRB must file motions asking courts to remand them back to the board, where new three-member panels will be required, in most cases, to revisit them and reissue decisions.

The labor board is in the early stages of responding to the court’s ruling and has made no decisions about how to prioritize the cases, or how to reconcile the new workload with other cases pending before the labor board, Wagner said.

“Really, the board is just trying to figure out the appropriate steps to manage that caseload,” he said.

One reason the number of cases is lower than previously thought is that many of the decisions relating to specific labor disputes — such as accusations of improper terminations or alleged violations of union organizing rules — have been resolved.

In many of those cases, involved parties may now elect to do nothing, allowing the decisions to stand.

“Everybody’s moved on with their lives,” Lotito said.

In other cases where decisions affected large numbers of workers or employers, the board might face calls to review cases that are not currently before the courts, Lotito said. That would force the NLRB to make decisions about whether to accept and consider new briefs from groups and issue new opinions, which then would be subject to a new crop of court challenges, he said.

In short, an aggressive push to revisit additional cases not included in the current count could leave the NLRB with a mess on its hands.

Even if the number remains around 100, the board could be saddled with months of additional work.

Given the board’s political and ideological makeup, the decisions are not likely to change much a second time around. However, the process could take the labor board away from other priorities.

Among them are cases dealing with the Northwestern University football team’s unionization bid, the right of employees to use work email to organize a union, the board’s proposed rule allowing for speedier union elections and a decision that could change the very definition of who counts as an employer for the purpose of labor rules.

And the labor board’s window for action could already be closing, said Marshall Babson, a Republican and former member of the NLRB .

Democratic member Nancy Schiffer's term on the board expires in December and it is unlikely the NLRB will get a new board member to replace her at that time, Babson said, adding that wrapping up all that work in five months would be a "tall order." 

"They have from now until mid-December to get out all of those cases backed up as a result of Noel Canning and deal with these other very, very important issues that they were already working on," Babson said. "That's a lot of work to be done."

Babson suggested the NLRB might not have time to push through many of the important cases it is currently working on if it is to reissue 100 cases by the end of the year

"I think that Noel Canning will have a real world impact on the board's ability to get to its pending agenda, if they're going to give these cases that need to be re-decided the consideration they deserve," he said. 

Tim Devaney contributed to this story.