Wednesday, May 27, 2009
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). According to Law 360 (subscription required):
“Absent resolution from this court, employees, employers and unions throughout the country will face continued uncertainty,” the petition said. The petition claims that the validity of hundreds of decisions by the NLRB was cast into doubt by the “diametrically opposed holdings.” . . .
“There is no clear answer to a question of critical importance to labor law — does the NLRB exist?” the petition asked. . . .
New Process claims the circuit split threatens to stymie labor relations throughout the U.S. "The D.C. Circuit correctly held that the NLRA does not permit the board to function with only two members. We believe that the Seventh Circuit's decision is an incorrect interpretation of the act," said Joseph W. Ambash, one of the attorneys representing New Process.