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In the wake of the Supreme Court's recent decision in New Process Steel v. NLRB, which held that the National Labor Relations Board (Board) lacked authority to issue approximately 600 rulings between January 2008 and March 2010, the Board issued a press release on July 1, 2010, seeking to have the cases remanded back to it for further consideration.
On June 17, 2010, the Supreme Court issued a 5-4 opinion holding that the National Labor Relations Act authorizes the Board to delegate its authority to a three-member group and permits the three-member group to act on the Board's behalf if at least two members participate in the decisions. The Court held that this required the Board to maintain at least three members "at all times," and because the Board had only two members between January 2008 and March 2010, it did not possess authority to issue decisions during that period.
On July 1, 2010, the Board issued a press release outlining a plan for handling the roughly 96 cases pending on appeal-six at the Supreme Court and 90 at various Courts of Appeals-challenging the authority of the two member Board to issue decisions. The Board asked that the cases be remanded back to it in light of the Supreme Court's decision. According to the press release, a panel of three of the Board's five members (three members have been appointed since March 2010) will reconsider the remanded cases. Each three member panel will include Chairman Wilma B. Liebman (D) and Peter C. Schaumber (R), the members who originally issued the rulings. The third member will be randomly assigned, and the fourth and fifth members can participate at their option. It is unclear how many of the 500 plus cases not currently subject to appeal can or will be challenged.
