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Tuesday, May 05, 2009

Courts - "Sixteen Months of Rulings Down the Drain at the NLRB?"

Recall this ILB entry from May 1st, headed "Nearly simultaneous, conflicting Circuit Court NLRB opinions issued this afternoon." It included this quote from an AP story:

In rulings rendered virtually simultaneously, the U.S. Court of Appeals in Washington held that a decision handed down last year by the National Labor Relations Board is invalid because it was made by just two members while a federal appellate court Chicago took the opposite position. It held within the same hour that a vote by the two members was appropriate and binding.
Yesterday the WSJ Law Blog reported at length on the DC Circuit ruling. A quote from the end of the entry:
We checked in with Proskauer Rose’s Peter Conrad, a partner and labor & employment specialist and the author of this Proskauer client memo on the ruling.

Conrad said that while the impact of the ruling was potentially quite far-reaching, the rationale of it makes sense. “The law is fairly clear,” says Conrad. “It says that among other things, a quorum of the board shall require three members. Other courts — namely the First Circuit and the Seventh Circuit — have ruled otherwise, but I don’t think those courts’ analysis is as persuasive.”

Conrad adds that, at this point, there exist more unknowns than knowns about what the ruling means, though he predicts that the ruling could trigger an assessment of all 400 or so cases handled by Liebman and Schaumber to see where they stand. “My guess is that they’ll leave alone all those in which the GC of the NLRB failed to prevail,” but that still presumably leaves a lot of other cases. “If you’re an employer who lost, theoretically you’d now have the wherewithal to go running to the D.C. Circuit” to appeal, added Conrad.

Nor was Conrad sure how the NLRB would go forward, with only two members. “Will they continue to issue opinions?” he asks. “I’m just not sure. Everything’s been thrown up in the air.”

[More] See also this item from The Blog of Legal Times.

Posted by Marcia Oddi on May 5, 2009 12:14 PM
Posted to Courts in general