In New Process Steel v. National Labor Relations Board (NLRB), the United States Supreme Court held that the NLRB needs at least three members to exercise its authority. This poses quite a problem because the Board had been acting with only two members for over two years. With this one opinion, the Supreme Court effectively invalidated about 600 cases decided by the NLRB. This leads to the question: what now?
Some Circuit Courts were quick to act. For example, the Sixth Circuit sua sponte remanded Galicks, Inc. v. NLRB, a case challenging the Board’s authority, within a week of New Process Steel. Only eight days after the Supreme Court’s decision, the Second Circuit simply denied the NLRB’s petition to enforce one of its two-member orders in NLRB v. Talmadge Park. Even the Supreme Court itself reacted to its own holding in New Process Steel by issuing summary dispositions on June 28, 2010. The dispositions granted certiorari, vacated the judgments, and remanded to the Circuit Courts from whence they came.
On July 1, 2010, the NLRB itself weighed in on the all important question: what now? The NLRB issued a press release summarizing its plan for “considering 2-member cases in wake of Supreme Court ruling:”
At the time of the June 17 Supreme Court decision, 96 of the two-member decisions were pending on appeal before the federal courts – six at the Supreme Court and 90 in various Courts of Appeals. The Board is seeking to have each of these cases remanded to the Board for further consideration. Each of the remanded cases will be considered by a three-member panel of the Board which will include Chairman Liebman and Board Member Schaumber (the original decision-makers). Consistent with Board practice, the two other Board members not on the panel will have the opportunity to participate in the case if they so desire.
It is unclear how many of the remaining decisions can or will be contested, but this is a start.
It will take some effort for the NLRB to work through these cases. And that’s assuming the federal courts comply with the request to remand to the Board. The NLRB is now at full strength for the first time since 2007 so we need not worry about unauthorized decisions for the time being. Given the shockwaves from New Process Steel, the Board will probably not be permitted to fall below three again. For now though, the plan moving forward is starting to become clear.