Background: the NLRA's quorum requirement
When the National Labor Relations Act (also known as the Wagner Act) was passed in 1935, the NLRB had three members, [1] with two members "at all times" constituting a quorum. [2] In 1947, Congress passed the Taft-Hartley Act, which increased the size of the Board from three to five members, with the powers of the Board delegated to three-member panels who issued decisions in cases. [3]
According to Section 3(b) of the Act, as amended by Taft-Hartley,
The Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise. A vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board, and three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group designated pursuant to the first sentence hereof. [4]
Between 1993 and 2007, there were brief periods when the Board had only two members, [5] but these have rarely extended beyond a few days and the two-member Board did not issue decisions.
The two-member Board
In December 2007, the terms for three of the Board's five members were set to expire. President George W. Bush's nominees were blocked by Senate Democrats. [6] On December 16, 2007, Chairman Robert J. Battista's term expired and member Wilma Liebman took over as chairwoman for the remaining four-person Board. On December 28, 2007, with the terms of members Peter Kirsanow and Dennis Walsh set to expire on New Year's Eve, the four-member Board delegated all of its powers to the three-person panel of Chairwoman Liebman and members Kirsanow and Peter Schaumber. By doing so, the Board operated under the assumption that the two remaining members, Liebman and Schaumber, were able to make decisions as a majority of the designated three-person Board.
That same day, the General Counsel issued an unfair labor practice complaint against employer New Process Steel in their dispute with the International Association of Machinists and Aerospace Workers. On May 1, 2008, an administrative law judge issued a decision against New Process Steel. The General Counsel followed with another complaint on May 29, 2008, and filed for summary judgment with the Board. In late September 2008, the Board found New Process Steel to have violated Sections 8(a)(1) and (5) of the NLRA in both cases. [7] [8]
New Process Steel appealed the Board's decisions, arguing in part that the Board lacked the required three-person quorum to make decisions. The Seventh Circuit Court of Appeals denied the appeal and enforced the Board's order on May 1, 2009. [9] New Process Steel then appealed to the Supreme Court, which granted certiorari on November 2, 2009, due to conflicting circuit court decisions and a request from the Department of Justice to review the issue given the stakes. The First, [10] Second, [11] Fourth, [12] Seventh and Tenth Circuit Courts of Appeals [13] had ruled in favor of the government; however, the United States Court of Appeals for the D.C. Circuit [14] ruled against it.
Between January 2008 and June 2010, according to then-Solicitor General Elena Kagan, the two-member Board of Liebman and Schaumber issued nearly 600 decisions.New Process Steel, L.P. v. NLRB, 560U.S.674 , 678(2010). During that time, they informally agreed to hear only noncontroversial cases until a third member was confirmed. [15]
The National Labor Relations Act of 1935, also known as the Wagner Act, is a foundational statute of United States labor law that guarantees the right of private sector employees to organize into trade unions, engage in collective bargaining, and take collective action such as strikes. Central to the act was a ban on company unions. The act was written by Senator Robert F. Wagner, passed by the 74th United States Congress, and signed into law by President Franklin D. Roosevelt.
The National Labor Relations Board (NLRB) is an independent agency of the federal government of the United States that enforces U.S. labor law in relation to collective bargaining and unfair labor practices. Under the National Labor Relations Act of 1935, the NLRB has the authority to supervise elections for labor union representation and to investigate and remedy unfair labor practices. Unfair labor practices may involve union-related situations or instances of protected concerted activity.
An unfair labor practice (ULP) in United States labor law refers to certain actions taken by employers or unions that violate the National Labor Relations Act of 1935 29 U.S.C. § 151–169 and other legislation. Such acts are investigated by the National Labor Relations Board (NLRB).
Lechmere, Inc. v. National Labor Relations Board, 502 U.S. 527 (1992), is a US labor law case of the Supreme Court of the United States on union rights and private property rights. It forbids nonemployee union organizers from soliciting support on private property unless no reasonable alternatives exist.
NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), is a United States labor law case decided by the Supreme Court of the United States. It held that employees in unionized workplaces have the right under the National Labor Relations Act to the presence of a union steward during any management inquiry that the employee reasonably believes may result in discipline.
The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace is a legal treatise written by Charles J. Morris which analyzes collective bargaining under the National Labor Relations Act (NLRA), the federal statute governing most private sector labor relations in the United States. Published in 2005 by Cornell University Press, the text claims that the NLRA guarantees that employees under that Act have the right to bargain collectively through minority unions—but only on a members-only basis—in workplaces where there is not an established majority union, notwithstanding that the present practice and general understanding of the law is that only majority-union employees are entitled to engage in collective bargaining on an exclusivity basis. Contracts resulting from such minority-union bargaining would apply to union members only, not to other employees.
NLRB v. Truck Drivers Local 449 , 353 U.S. 87 (1957), is an 8-0 decision by the Supreme Court of the United States in which the Court held that a temporary lockout by a multi-employer bargaining group threatened by a whipsaw strike was lawful under the National Labor Relations Act (NLRA), as amended by the Taft-Hartley Act.
NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938), is a United States labor law case of the Supreme Court of the United States which held that workers who strike remain employees for the purposes of the National Labor Relations Act (NLRA). The Court granted the relief sought by the National Labor Relations Board, which sought to have the workers reinstated by the employer. However, the decision is much better known today for its obiter dicta in which the Court said that an employer may hire strikebreakers and is not bound to discharge any of them if or when the strike ends.
Peter N. Kirsanow is a partner with the law firm of Benesch, Friedlander, Coplan & Aronoff, working within its Labor & Employment Practice Group in Cleveland, Ohio. He is a black civil-rights commissioner and a member of the United States Commission on Civil Rights, serving his fourth consecutive 6-year term, which he was reappointed to by House Majority Leader Steny Hoyer in December 2019. He is the longest-serving member among the current commission. He was previously a member of the National Labor Relations Board (NLRB) from January 2006 to January 2008.
Communications Workers of America v. Beck, 487 U.S. 735 (1988), is a decision by the United States Supreme Court which held that, in a union security agreement, unions are authorized by statute to collect from non-members only those fees and dues necessary to perform its duties as a collective bargaining representative. The rights identified by the Court in Communications Workers of America v. Beck have since come to be known as "Beck rights," and defining what Beck rights are and how a union must fulfill its duties regarding them is an active area of modern United States labor law.
Joseph Warren Madden was an American lawyer, judge, civil servant, and educator. He served as a judge of the United States Court of Claims and was the first Chairman of the National Labor Relations Board. He received the Medal of Freedom in 1947.
Wilma B. Liebman is an American lawyer and civil servant who is best known for serving as a member of the National Labor Relations Board (NLRB). She was designated chair of the board by President Barack Obama on January 20, 2009, becoming only the second woman to lead the NLRB.
Ford Motor Co. v. NLRB, 305 U.S. 364 (1939), is an 8-to-0 decision by the Supreme Court of the United States which held that an administrative agency of the United States government, seeking enforcement of its orders, cannot withdraw its petition or the transcript of the administrative hearing once these have been submitted to the appropriate court. Whether the agency should be permitted to withdraw its petition is a decision for the court of appeals, the Supreme Court said.
In re Labor Board, 304 U.S. 486 (1938), is a 5-to-2 decision by the Supreme Court of the United States which held that the National Labor Relations Act requires the filing of a petition and a transcript in order for an enforcement order to proceed in federal court, and that a writ of prohibition and writ of mandamus are appropriate measures to take in quashing a petition when no transcript has been filed.
National Labor Relations Board v. Sands Manufacturing Co., 306 U.S. 332 (1939), is United States labor law case, decided by a majority of 5 to 2 by the Supreme Court of the United States, which overturned a decision by the National Labor Relations Board because it was not supported by substantial evidence. The Court defined collective bargaining under the National Labor Relations Act to mean that proposals and responses to proposals were pending, and that future meetings were being planned. Absent such conditions, bargaining was not occurring. The Court also held that an employer did not violate the Act if it chose to deal with the employees on an individual basis.
John Cushman Truesdale Jr. was an American lawyer and civil servant who served two terms as executive secretary of the National Labor Relations Board, four terms as a board member, and one term as board chair.
National Labor Relations Board v. Noel Canning, 573 U.S. 513 (2014), was a United States Supreme Court case in which the Court unanimously ruled that the President of the United States cannot use his authority under the Recess Appointment Clause of the United States Constitution to appoint public officials unless the United States Senate is in recess and not able to transact Senate business. The Court held that the clause allows the president to make appointments during both intra-session and inter-session recesses but only if the recess is of sufficient length, and if the Senate is actually unavailable for deliberation, thereby limiting future recess appointments. The Court also ruled that any office vacancy can be filled during the recess, regardless of when it arose. The case arose out of President Barack Obama's appointments of Sharon Block, Richard Griffin, and Terence Flynn to the National Labor Relations Board and Richard Cordray as the director of the Consumer Financial Protection Bureau.
Epic Systems Corp. v. Lewis, 584 U.S. ___ (2018), was a case decided by the Supreme Court of the United States on how two federal laws, the National Labor Relations Act (NLRA) and the Federal Arbitration Act (FAA), relate to whether employment contracts can legally bar employees from collective arbitration. The Supreme Court had consolidated three cases, Epic Systems Corp. v Lewis, Ernst & Young LLP v. Morris (16-300), and National Labor Relations Board v. Murphy Oil USA, Inc. (16-307). In a 5–4 decision issued in May 2018, the Court ruled that arbitration agreements requiring individual arbitration and prohibiting class action lawsuits are enforceable under the FAA, regardless of allowances set out within the NLRA.
Emporium Capwell v. Western Addition, 420 U.S. 50 (1975), was a United States Supreme Court case. The court reversed and remanded the Court of Appeals ruling. The Supreme Court ruled on the basis of the Civil Rights Act of 1964 and the National Labor Relations Act of 1935 (NLRA).
Sure-Tan, Inc. v. National Labor Relations Board, 467 U.S. 883 (1984) is a United States labor law case that resulted in a split decision before the Supreme Court of the United States. By a 7-2 majority, the Court ruled that undocumented immigrant workers were “employees” covered by the National Labor Relations Act of 1935 (NLRA). However, by a 5-4 majority the Court ruled that the National Labor Relations Board (NLRB) was limited in its remedies for penalizing employers who fired undocumented workers for union organizing in violation of the NLRA. The decision was one of a series limiting the rights of immigrant workers and the power of the NLRB culminating with Hoffman Plastic Compounds, Inc. v. NLRB.
