U.S. Supreme Court rejects authority of two-member NLRB

Yesterday, in a 5-4 decision, the Supreme Court of the United States ruled that a two-member National Labor Relations Board did not have the authority to issue decisions.  In New Process Steel, L.P. v. National Labor Relations Board, 560 U.S. ___ (2010), Justice Stevens, writing for the majority, explained that while the National Labor Relations Act permitted the Board to act in panels of three, that authority did not extend to a Board comprised of only two members. 

From January 2008 to March 2010, three of the Board's five seats were vacant because nominations were stalled in the Senate confirmation process.  During that time, the remaining two members, Wilma Liebman (D) and Peter Schaumber (R), continued to act as a Board to avoid a complete shut down of the litigation process.  The two agreed upon and issued over 600 decisions, which are now called into question.  Over 70 of those decisions are currently pending before various federal courts on appeal, challenging the two-member Board's authority.  The Board expects that those cases will be remanded to the Board for further consideration. 

In March, President Obama made recess appointments, which run through the end of the 2011 Senate session, for two of the three vacancies.  A Republican seat is still vacant.  All three nominations remain before the Senate for appointments for full terms.  Member Schaumber's term expires this August.  Consequently, by the end of this summer, the Board could function with only three members, all of whom would be Democrats, if the Senate does not act. 

This article was written by Erin E. Magee, Jackson Kelly PLLC.