This is the second of two columns discussing decisions issued by the U.S. Supreme Court during the 2009-10 term in the area of labor and employment law. Today’s column reviews rulings on the following issues: (1) the power of a two-member group of the National Labor Relations Board to exercise authority, (2) whether the court or an arbitrator should resolve a dispute over the ratification date of a collective bargaining agreement (CBA), (3) whether the court or an arbitrator should determine an arbitration agreement’s validity where a party challenges the entire contract as unconscionable, (4) the appropriate standard for recovery of attorney’s fees under §1132(g)(1) of ERISA, and (5) the National Railroad Adjustment Board’s (NRAB) jurisdiction over a dispute where a prearbitration settlement conference has not taken place.
Board Authority
In the highly anticipated case of New Process Steel v. NLRB, 130 S.Ct. 2635 (2010), the Supreme Court ruled 5-4 that the board lacks authority to issue rulings in unfair labor practice and representation cases unless at least three of the board’s five seats are filled. This controversial decision puts into question hundreds of cases decided since Jan. 1, 2008 by a board operating with only two members.
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