Joshua Ditelberg Quoted in Human Resource Executive Online
“NLRB Case Creates Uncertainty”

Joshua Ditelberg was quoted in the Human Resource Executive Online article, "NLRB Case Creates Uncertainty,” published November 30, 2009. The article discussed how the Supreme Court will rule on whether decisions issued by the two incumbent members on the five-member National Labor Relations Board (NLRB) are valid. According to the article, a ruling throwing out all of the decisions issued since January 2008 could create chaos, although there were few controversial decisions made during that time.

The article noted that employment attorneys have mixed opinions on how the Supreme Court might rule, with some predicting the high court may support a majority of the rulings and others expecting it to side with the D.C. Circuit decision. Josh commented that it could play out either way. He pointed out, "It strikes me as a close call. Based on my reading of the statute and its language, it's hard to tell how the court will rule on this. Though there was a four-to-one split [in the circuit courts in favor of the NLRB's authority], that doesn't necessarily indicate how this will turn out, since the D.C. Circuit is of critical importance [because appeals can be brought before it from any region of the country]."

Josh added, "If you were the focus of one of these two-person decisions, there's going to be some uncertainty as far as where you stand with NLRB. But the reality is, the [fully operational] board will eventually take steps to ratify or approve the decisions that were already made." He also noted that it is likely to lead to delays for those with matters currently before the board. "From a day-to-day standpoint, it won't shut the system down, but it will certainly slow it down." Josh continued, "The board's current composition is one Democrat and one Republican -- one pro-labor and one pro-business. So, in a very conscious and deliberate way, what the board has done is defer [deciding] the controversial cases." Because of that, he adds, a decision to nullify the authority of a two-member NLRB should have limited consequences.

According to the article, employment attorneys agree that the lengthy vacancies are unfortunate. Josh concluded, "I think the president will be putting more pressure to get the nominations through. But the opposition... for the Becker nomination is very serious."