NLRB Chairman Wilma B. Liebman

About 600 NLRB Decisions in Jeopardy

The U.S. Supreme Court ruled 5-4 on Thursday that the National Labor Relations Board, which decides unfair labor practice cases and oversees union representation elections, lacked authority to issue decisions when it had only two members.

What will happen to almost 600 cases decided by the National Labor Relations Board from January 2008 through late March 2010 is uncertain, now that the U.S. Supreme Court has issued its 5-4 decision in New Process Steel v. National Labor Relations Board, No. 08-1457. The five justices in the majority held that the five-member board lacked authority to issue all of those decisions because it had only two members during that period. President Obama used recess appointments in March 2010 to increase the board to four members, with business groups loudly opposing one of his choices, Craig Becker.

The board decides unfair labor practice cases and oversees union representation elections. Dozens of parties that lost cases during the period filed appeals challenging the board's authority to rule with two members, and federal appeals courts issued conflicting decisions on the question, with five circuit courts ruling in the board's favor and the D.C. Circuit Court of Appeals ruling against it.

In a statement responding to the Supreme Court's decision on Thursday, the board said five more cases before the Supreme Court and 69 cases currently before federal appeals courts raise the same question, and now those cases are expected to be remanded to the board, which "will decide the appropriate means for further considering and resolving them," the statement said.

"When the board went to two members in January 2008, Member [Peter] Schaumber and I made a difficult decision in difficult circumstances," NLRB Chairman Wilma Liebman says in the statement. "In proceeding to issue decisions in nearly 600 cases where we were able to reach agreement, we brought finality to labor disputes and remedies to individuals whose rights under our statute may have been violated. We believe that our position was legally correct and that it served the public interest in preventing a board shutdown. We are of course disappointed with the outcome, but we will now do our best to rectify the situation in accordance with the Supreme Court's decision."

An analysis of the Supreme Court's decision on the SCOTUSblog from Akin Gump Strauss Hauer & Feld LLP is available here.

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