Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Sunday, May 31, 2009

Cert. Petition Filed In 2 Member NLRB Circuit Decision

Nlrbseal Supreme Court

Workplace Prof Blog has done an excellent job following the issue of whether or not the NLRB has the authority to issue two member decisions. As readers to this blog know, there is a conflict in the circuits with respect to this issue. On May 28, 2009, they reported that:

 As it said it would do, the NLRB recently issued two, two-member decisions (dated May 21) following the D.C. Circuit's holding in Laurel Baye that such decisions were invalid.  The cases are Regional Emergency Medical Services and Iron Workers, Local 378  

On May 27, 2009, Workplace Prof Blog reported on a cert petition being filed by the employer which stems from a 7th Circuit case:

   The first cert petition coming out of the recent circuit split over the validity of two-member NLRB decisions has arrived.  In New Process Steel, the Seventh Circuit held that the two-members decisions were valid which, along with an earlier First Circuit decision), created a split with the D.C. Circuit.  So, the employer in New Process petitioned the Supreme Court to hear the case (Download Cert petition).


On May 28, 2009 Workplace Prof Blog reported that the NLRB was seeking a rehearing in the Laurel Baye case:

In more developments on the two-member NLRB issue, the Board announced today that it will petition the D.C. Circuit for rehearing and rehearing en banc in Laurel Baye.  According the Board's press release:

After very careful consideration, we have determined that, as a quorum of the National Labor Relations Board, we will continue to issue decisions and orders in unfair labor practice and representation cases. While a recent panel decision of the United States Court of Appeals for the District of Columbia Circuit held that we lack the authority to do so, two appellate courts have upheld our authority, and the issue is pending before seven other Circuits. Our original determination to act as a two-member Board was supported by a legal opinion that the Board earlier had sought from the Department of Justice’s Office of Legal Counsel.
Adjunct Law Prof Blog reported on the Laurel Baye case on May 2, 2009 here.
Mitchell H. Rubinstein

Labor Law, Law Review Ideas, NLRB, Supreme Court | Permalink

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