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Shutdown of NLRB asked (UPDATED)

UPDATE Tuesday pm:   Chief Justice John G. Roberts, Jr., on Tuesday denied this application, without first seeking a response from the NLRB.  He did not issue an opinion giving reasons.


A cable television company in the New York City area on Monday evening asked the Supreme Court to order the staff of the National Labor Relations Board to stop pursuing labor disputes until the constitutionality of the Board’s current membership is settled.  In a lengthy application, the company and its parent argued that if the Board has no power to act, its regional staffs may not, either.

The application (CSC Holdings v. NLRB, docket 13A20) was filed with Chief Justice John G. Roberts, Jr., who is the Circuit Justice for the D.C. Circuit.  He has the authority to act on his own, or share action with his colleagues.  The plea, an attempt to block temporarily any action by the Board’s “agents,” was filed one week after the Court had agreed to review at its next Term the constitutionality of President Obama’s appointments to the Board during a 2012 recess of the Senate (NLRB v. Noel Canning, docket 12-1281).

In the form granted by the Court, the Noel Canning case focuses directly on the authority of three members of the Board to take part.  The Board has five members, but can only function if it has at least three who were legally named, and the D.C Circuit has ruled that the recess appointees were not validly placed on the agency.  The CSC Holdings request seeks to broaden the challenge downward within the agency, reaching its general counsel and its regional directors, who initiate “unfair labor practices” cases.

CSC Holdings and its subsidiary Cable Systems New York City Corp. are both parts of Cablevision Systems Corp., based in Bethpage, New York.  They have been involved in a prolonged labor contract dispute with the Communications Workers of America union.  The two sides have yet to reach an agreement on all issues between them, and the union has accused the company of several “unfair labor practices” during the bargaining.  The Board’s regional directors in two areas filed complaints against the management.  Those cases, involving CSC workers in the Bronx and Brooklyn areas of New York City, have now been joined, and a hearing is scheduled on them for next Monday.

The cable system tried to get the Board’s acting general counsel to stop those proceedings, but that was refused, with the Board officer saying that the staff has its own authority under federal labor law and can continue to process cases even while there is a question about the Board’s ability to function.  The companies then asked the D.C. Circuit to block the proceedings and to issue a temporary postponement of them.   The Circuit Court turned down both requests last Friday, and put the companies’ legal challenge on hold while the Circuit Court considers a case raising a related issue.

Thus turned aside at the Board and at the Circuit Court, the companies on Monday asked the Supreme Court to step in.  The application contended that the Board’s staff and the companies will “squander vast resources” in the proceedings, and yet the Board itself may lack the authority to ultimately decide whether federal labor law has been decided because of its alleged lack of a valid quorum.  Aside from the proceedings that are due to start next Monday, the application said, the companies may be faced with a court battle over a possible move by the Board to get an order to stop any alleged violation of the law.

The federal appeals courts are divided, CSC Holdings said, over the question of whether “the Board’s agents may exercise the agency’s statutory authority if the Board itself cannot.”  That split is separate, it noted, from the lower court split that led the Supreme Court to grant review in the Noel Canning case.

The application sought one of two alternative orders from the Supreme Court: first, an “emergency” stay of the cases pending before the Board until the D.C. Circuit Court can rule on the companies’ challenge; and, second, an order by the Supreme Court to go ahead and grant review of the question of the authority of the Board’s staffs and, in the meantime, to issue a stay until that case could be decided.

The Chief Justice presumably will seek a response from the NLRB before acting on either request.


Recommended Citation: Lyle Denniston, Shutdown of NLRB asked (UPDATED), SCOTUSblog (Jul. 1, 2013, 9:39 PM),