The U.S. Court of Appeals in Washington held that all the decisions handed down last year by the National Labor Relations Board are invalid because they were made by just two members. But the U.S. Court of Appeals located in Chicago took the opposite position, ruling within the same hour that the votes were appropriate and binding.
The board normally is supposed to have five members. But it had worked with three vacancies for a year because Democrats who controlled Congress objected to President George W. Bush's labor policies and refused to confirm nominees considered too pro-business.
With the appeals court decisions at odds, the Supreme Court is more likely weigh in on appeal on what Clark University industrial relations professor Gary Chaison called "a terrible mess."
The issue is being litigated in several other cases around the country, with one prior opinion out of the Court of Appeals located in Boston siding with the NLRB.
NLRB Chair Wilma Liebman called the Washington court's ruling a disappointment. Liebman, a Democrat, says she and fellow board member Peter Schaumber, a Republican, have worked to keep the board running even as it was short-staffed.
"For the last 16 months, Member Peter Schaumber and I have been dedicated to resolving cases and to avoiding a decisional backlog," Liebman said. "We have issued about 400 decisions during this period."
She noted that President Barack Obama has announced his intention to nominate two labor lawyers to the NLRB and she hoped that would soon bring the board "out from under the current legal cloud." She said she and Schaumber would consider what options they have in the meantime to deal with cases pending before them.
Chaison said, "It's like an attempt to unravel history."
While he said he couldn't think of a major precedent-setting ruling within the past year, Chaison also said that hundreds of small procedural changes and individual remedies will now be brought into question.
"Unions can claim that organizing contests they've lost can be reversed," Chaison said. "Workers who have been reinstated with back pay during organizing drives now might have to argue those cases all over again."