Friday, May 14, 2010
Tweet[IWS] NLRB: 'NEW PROCESS STEEL' BACKGROUND MATERIAL & recent news
IWS Documented News Service
_______________________________
Institute for Workplace Studies----------------- Professor Samuel B. Bacharach
School of Industrial & Labor Relations-------- Director, Institute for Workplace Studies
Cornell University
16 East 34th Street, 4th floor---------------------- Stuart Basefsky
New York, NY 10016 -------------------------------Director, IWS News Bureau
________________________________________________________________________
National Labor Relations Board
Background Materials on New Process Steel
http://www.nlrb.gov/about_us/news_room/backgrounders/nps_bkgd.aspx
On March 23, the U.S. Supreme Court heard argument in New Process Steel, L.P. -- a case that will determine whether or not the National Labor Relations Board is able to issue decisions with three of its five seats vacant. Due to a variety of political circumstances, Chairman Wilma Liebman and Member Peter Schaumber were the sole members from January 2008 to March 2010. In that time, they issued nearly 600 decisions in cases on which they could agree. About 80 of those decisions have been appealed to federal courts. Decisions at the circuit court level were mixed before the Supreme Court agreed to take up New Process. Below are links to significant documents in this case, including related appellate court decisions.
Transcript of oral argument before the Supreme Court: http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-1457.pdf
Brief submitted for the NLRB by the Solicitor General of the US: http://www.justice.gov/osg/briefs/2009/3mer/2mer/2008-1457.mer.aa.pdf
Press release on U.S. Supreme Court decision to hear the case:
http://www.nlrb.gov/shared_files/Press%20Releases/2009/R-2709.pdf
Decision by U.S. Court of Appeals for the District of Columbia Circuit, against the Board:
http://pacer.cadc.uscourts.gov/docs/common/opinions/200905/08-1162-1178601.pdf
Decision by U.S. Court of Appeals for the First Circuit, in favor of the Board
http://www.ca1.uscourts.gov/pdf.opinions/08-1878P-01A.pdf
Decision by U.S. Court of Appeals for the Second Circuit, in favor of the Board
http://www.ca2.uscourts.gov/decisions/isysquery/0d6f173a-2769-4623-b6e8-7c7e434c9df6/1/doc/08-3822-ag_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/0d6f173a-2769-4623-b6e8-7c7e434c9df6/1/hilite/
Decision by U.S. Court of Appeals for the Fourth Circuit, in favor of the Board
http://www.nlrb.gov/nlrb/shared_files/documents/TransportRoom.pdf
Decision by U.S. Court of Appeals for the Seventh Circuit, in favor of the Board
http://www.ca7.uscourts.gov/tmp/X90K6T66.pdf
Decision by U.S. Court of Appeals for the Tenth Circuit, in favor of the Board
http://www.ck10.uscourts.gov/opinions/08/08-9568.pdf
See also:
Parties Urge Supreme Court Not to Dismiss NLRB Quorum Case
Marcia Coyle
The National Law Journal
May 06, 2010
In the U.S. Supreme Court clash over the authority of a two-member National Labor Relations Board to issue decisions, the parties -- the government and New Process Steel -- now agree on something: The case is not moot because of the recess appointments of two additional board members.
The justices on April 16 asked the parties for new briefs on what effect the March 27 appointments of Craig Becker and Mark Pearce might have on the case, New Process Steel v. National Labor Relations Board. The case was argued on March 23.
Last week, the government in its letter to the Court said the recess appointments do not affect the nearly 600 other cases decided by the two-member board between Jan. 1, 2008, and March 26, 2010. Also not affected, noted the government, are an additional 76 cases pending in or decided within the last 90 days by the courts of appeals in which litigants have challenged (or a court has sua sponte raised) the validity of the board's decision because it was entered by the two-member quorum.
"All of these cases present live controversies because it remains the Board's position that the orders at issue are entitled to enforcement and that parties are obliged to comply with the judgments of the courts that have enforced such orders," wrote Solicitor General Elena Kagan on April 26.
The government also told the Court that NLRB Chair Wilma Liebman and member Peter Schaumber have issued approximately 500 orders that no party has yet appealed. Many of those decisions are in potential jeopardy as a result of the uncertainty over the quorum and delegation provisions of the National Labor Relations Act.
"[A]n unknown but potentially large portion of those 500 orders could require reconsideration if this Court does not resolve the validity of the two-member decisions," added Kagan.
New Process Steel's counsel, Sheldon Richie of Richie & Gueringer in Austin, Texas, told the Court, "The NLRB has fallen below three members on several occasions in the past. It is likely that the NLRB may again fall to two members in the future and then as now, the decisions reached by this shorthanded Board will be undermined by uncertainty. The better public policy calls for a resolution of this case on its merits at this time."
Richie noted that the recess appointments will run out at the end of the Senate's next session in late 2011. Schaumber's appointment terminates in August 2010. "The Board could, therefore, find itself with as few as one member at the end of next year with no relief in sight until the next recess," he told the justices in his April 26 letter.
A third nominee to the NLRB -- Brian Hayes -- is awaiting Senate confirmation. Hayes is Republican labor policy director for the U.S. Senate Committee on Health, Education, Labor and Pensions.
________________________________________________________________________
This information is provided to subscribers, friends, faculty, students and alumni of the School of Industrial & Labor Relations (ILR). It is a service of the Institute for Workplace Studies (IWS) in New York City. Stuart Basefsky is responsible for the selection of the contents which is intended to keep researchers, companies, workers, and governments aware of the latest information related to ILR disciplines as it becomes available for the purposes of research, understanding and debate. The content does not reflect the opinions or positions of Cornell University, the School of Industrial & Labor Relations, or that of Mr. Basefsky and should not be construed as such. The service is unique in that it provides the original source documentation, via links, behind the news and research of the day. Use of the information provided is unrestricted. However, it is requested that users acknowledge that the information was found via the IWS Documented News Service.
****************************************
Stuart Basefsky
Director, IWS News Bureau
Institute for Workplace Studies
Cornell/ILR School
16 E. 34th Street, 4th Floor
New York, NY 10016
Telephone: (607) 255-2703
Fax: (607) 255-9641
E-mail: smb6@cornell.edu
****************************************
