Legal News

Sixteen Months of Rulings Down the Drain at the NLRB?

By Ashby Jones

People we feel sympathy for today: Dwyane Wade, the staffers at the Boston Globe, and Wilma Liebman (pictured) and Peter Schaumber.

What’s that? Never heard of Wilma Liebman or Peter Schaumber? We hadn’t either, until earlier today, when we were alerted to a ruling handed down on Friday by the D.C. Circuit in a case called Laurel Baye Healthcare of Lake Lanier, Inc. v. N.L.R.B.

Before we get to the opinion, let’s first give you a bit of background, courtesy of the Legal Times blog. For more than a year, the five-person National Labor Relations Board — which, among other things, issues rulings on National Labor Relations Act disputes — has been understaffed. Just two members, the aforementioned Wilma Liebman and Peter Schaumber, have issued decisions and orders.

But Liebman and Schaumber haven’t just issued the occasional one-off ruling. To the contrary, the pair have issued hundreds of decision since January 2008, when two colleagues left the board at the expiration of their appointments. But on Friday, the D.C. Circuit threw into question decisions made by the two-member NLRB after finding a board ruling invalid because the two sitting members did not constitute a quorum.

In the opinion, the court acknowledges the dilemma faced by Liebman and Schaumber. “Nevertheless,” continues the court, “we may not convolute a statutory scheme to avoid an inconvenient result. Our function as a court is to interpret the statutory scheme as it exists, not as we wish it.”

So what happens to all those decisions? And what happens to the NLRB going forward — at least until it picks up another two members (which appears to be pending)?
We placed a call to an NLRB spokesman, but have yet to hear back. Liebman, whom President Obama has tapped to chair the NLRB going forward, did issue a statement on Friday, in which she called the ruling “a disappointment” and went on:

The Board's delegation decision in December 2007 was based,as the District of Columbia Circuit recognized, on a reasonable interpretation of the law and on a desire to keep the Board's important work from coming to a complete halt for an indefinite period. For the last 16 months, Member Peter Schaumber and I have been dedicated to resolving cases and to avoiding a decisional backlog. We have issued about 400 decisions during this period.
. . .
In the meantime, Member Schaumber and I will carefully consider the legal options open to the current Board, both with respect to the court's decision and with respect to the cases now pending before us.

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 pevail,” 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.”

Full post as published by Law Blog - WSJ.com on May 04, 2009 (boomark / email).