Monday, February 4, 2008
Bales and Hirsch on NLRB Paralysis
Kudos to my esteemed, handsome co-bloggers, Rick Bales and Jeff Hirsch, for being quoted in the National Law Journal today in an article about the current state of affairs at the NLRB.
The article starts by noting that: "Facing paralysis because of vacancies, the National Labor Relations Board recently delegated its authority in two ways that may put its work in a perilous legal position, according to some scholars and litigators."
Thus Spake Jeff:
Labor scholar Jeffrey Hirsch of the University of Tennessee College of Law said that neither the statute nor the OLC opinion seems to address the current situation in which a two-member board will operate indefinitely.
"If the authority is not expressly given, it seems to me the default should be it's just not there," he said . . . .
His colleague, Richard Bales of Northern Kentucky University Salmon P. Chase College of Law, agreed, suggesting the statute's provision was written to deal with vacancies when there is still a majority on the board, or when one of a three-member group becomes sick or recuses himself because of a conflict.
"This raises an issue because this board is issuing decisions," he said. "Of what legal significance, if any, are those decisions? If I was on the losing end of one, I'd march into circuit court and say there's no binding precedent, no legal significance, and I might even ask for an injunction."
Management would be the more likely challenger, noted Hirsch, because "delay helps them," particularly in a union election situation.
Jeff and Rick's previous posts on the surreal happenings at the NLRB can be found here and here.