Supreme Court decision sends hundreds of labor disputes back to NLRB

By Tom Steward | Watchdog Minnesota Bureau

A unanimous Supreme Court decision Thursday invalidating President Obama’s recess appointments to the National Labor Relations Board may send more than 1,000 decisions back to go, including several Minnesota cases.

The high court’s ruling in NLRB v. Canning means the NLRB did not have a legal quorum, effectively invalidating labor decisions by illegally appointed panels, on hold since the Supreme Court took up the case.

The resulting backlog of NLRB cases includes 333 published decisions and 725 unpublished decisions spanning January 4, 2012 to Aug. 4, 2013, according to an analysis by former NLRB board member John Raudabaugh.

“All decisions, published and unpublished, absent settlement during the interim, must be reconsidered. Additionally, official actions made by the unconstitutional Board, including regional director appointments, presumably must be reconsidered as well,” wrote Raudabaugh on his NLRB Watch blog.

Raudabaugh now serves as an Ave University Law professor and National Right to Work Legal Defense Foundation staff attorney.

The list includes up to 21 NLRB cases in Minnesota decided over the year or so covered by the high court’s decision. It’s unclear what happens next, but the attorney for a Twin Cities bus company that lost a case against five former drivers anticipates another opportunity.

“Our case involves whether the employer waited around a couple of years to terminate individuals because of their alleged protected activity,” said Tom Revnew, attorney for the bus company, Vision of Elk River. “So I think the NLRB has to reexamine that decision and reexamine the issues and the facts that will be in front of them. And I don’t know how long that will take.”

The Elk River case dates to 2009 and could involve several years of potential back pay for the workers. A Minnesota administrative law judge originally decided in favor of the company, but the NLRB reversed the decision in September 2012 in a 2-1 vote. The latest news Washington leaves former employees frustrated over the process.

“I forget about it, then every once in a while I think about it and wish it were over with and this whole thing be done,” said Anne Martin, a former bus driver at Vision of Elk River.

“It’s so time-consuming and wasting of the court’s time. We’ll do it of course, but I don’t know, I just felt we had the money coming,” said Sharron Lynas, another former driver.

The Elk River case joins hundreds of decisions that may be challenged in light of the Supreme Court action. At the same time, the current make-up of the five-member labor board includes three Democrats, who tend to favor labor’s interests. In practice, the outcome could be the same for most cases. Attorney Tom Revnew intends to move forward with his case just the same.

“Do they (NLRB) just rubber-stamp a decision that was reached by the prior panel, and that certainly is one of the concerns that I have,” said Revnew, noting legal costs add up fast. “The client … for a simple case they’re probably spending $50,000 if it’s going up to the court of appeals.”

“I think I blame the whole system. It’s like I can’t believe things have to take this many years to come to a decision,” Martin said about her case.

Watchdog Minnesota Bureau previously reported that other Minnesota cases up for reconsideration involved the outcome of elections over collective bargaining and a worker who challenged the union’s failure to inform him of his right to withhold dues for political activity. Another case involved an attempt by canvassers to unionize a Minneapolis collective, the Sisters’ Camelot.

“One thing is certain, the Supreme Court’s decision is a slap in the face to the politicization of the NLRB,” Raudabaugh, the former NLRB member, told Watchdog Minnesota Bureau. “The good news is that the NLRB’s efforts at micro-managing every word of employer policies may itself be ‘chilled’ as they begin reconsidering hundreds of invalid decisions and challenges to NLRB regional director vacancies invalidly approved.”

Contact Tom Steward at tsteward@watchdog.org