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Supreme Court Blockbuster Decision
On June 24, the Supreme Court issued its long-awaited decision in New Process Steel, L.P.v. NLRB, No. 08'1457, June 17, 2010, ruling that the National Labor Relations Board (the Board) does not have the authority to issue decisions without at least three members currently sitting on the Board. The decision invalidates in one fell swoop some 600 decisions that had been issued by the Board during a recent 27-month period in which the Board had only two members. While the Court's ruling is not expected to impact significantly the eventual outcome of those particular cases, it may reenergize the drive by Democrats in Congress to appoint Craig Becker and other union-friendly persons to full terms on the Board, thus creating a dramatic pro-union shift in the labor law landscape for years to come.
Background
By way of background, a fully constituted labor board has five members, but the National Labor Relations Act (the Act) allows the Board to delegate its authority to a group of at least three members. The Act further provides that the Board's three-member group can take action so long as two of the members concur in the decision. However, beginning Jan. 1, 2008, the Board took the position that it could operate with only two members after the appointments of certain Board members expired. The Board issued almost 600 two-member decisions during this time, 69 of which are pending as a result of appeals to the various U.S. Circuit Courts of Appeals. Five of these appellate courts found that the Board could operate with just two members (those were the First, Second, Fourth, Seventh and Ninth Circuits). On the other hand, the D.C. Circuit Court of Appeals ruled to the contrary, and held that the Board's two-member decisions were invalid. The New Process Steel case arose out of an unfair labor practice charge in the Seventh Circuit (which covers Illinois, Indiana and Wisconsin) and the company appealed to the Supreme Court.
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