Thursday, June 17, 2010
The significance of yesterday's decision in New Process Steel v. NLRB which invalidated 2 Member Board decisions cannot be overstated. An NLRB press release states this case will effect 69 cases pending in the Circuits and 5 cases that are pending in the Supremes. The Board expects those cases to be remanded. The decision itself stated that over 500 2 Member Board decisions were issued.
So what will the Board do? I am afraid that each of these cases will have to be remanded for a de novo review. It is no secret that Board members may sometimes alter their decisions in order to get others to sign on to their opinion. Additionally, in several of the 2 Member Board decisions, one of the Board Members agreed with the other Board Member for institutional reasons.
Cases are going to be even further delayed. This situation, together with the inability of the President and the Senate to agree on full term appointments demonstrates that legislative relief and reform is badly needed. This is not a new problem at the NLRB. The agency is known to flip flop every time the Presidential party changes. Whether you are a Democrat or a Republican, I think we can all agree that the political process literally cripples the ability of the NLRB to work.
The problem with legislative relief is the political process itself. The reforms that the party in power would propose are far different than what the minority will accept.
It is time for Congress to consider replacing the NLRB with a National Labor Court where Court members are appointed for life, just like Article 3 judges. The judges should be appointed from the ranks of neutrals-not management or union side lawyers.
Mitchell H. Rubinstein