The Supreme Court handed down a decision earlier this month that invalidated a large number of decisions made by the National Labor Relations Board, New Process Steel v. National Labor Relations Board, The Board investigates complaints against employers regarding union activity, certifies union elections, and has similar duties generally relating to organized labor. The Board is supposed to have five members, and a majority vote is enough. Unfortunately, for two years the Board has only two members. This is politics – when the third member’s term expired in 2007, when President Bush was a lame duck, no action was taken. The Board members are designed to be from different political parties, and if no one is nominated, or the Senate does not confirm, vacancies can linger. This happens in judicial openings, too, but in this case the fact that the Board made decisions with only two members meant it did not have a quorum, or majority, and therefore those decisions are no good.
The Senate responded by quickly confirming two more nominees, one a Republican former congressional staffer, and one a labor lawyer who had been given a recess appointment awaiting full action by the Senate, bringing the Board back to five.
The Supreme Court’s decision theoretically could require the rehearing of scores of cases. In the real world, though, the parties to the disputes got the decision and moved on, and will have no incentive to reopen the old wounds. In some cases, the employee might be in a different job, in some the challenged practice has been abandoned, and in all cases the cost to bring the case again will have to be considered. Still, more than 70 cases were pending in court over the Board’s actions; these will be returned, giving the newly invigorated Board plenty to do.