Supreme Court Invalidates Nearly 600 Decisions Made by Two-Member NLRB

This morning the United States Supreme Court issued a highly-anticipated decision in New Process Steel v. National Labor Relations Board, ruling 5-4 to effectively invalidate almost 600 decisions made by the NLRB during the time it only had two members. 

Normally, the NLRB is comprised of five members, but typically delegates its powers to decide most cases to panels of three members, in which a two-member majority can (and often does) carry the day.  However, from late 2007 through March 2010, the Board only had two members.  Those two members argued that they had the authority to decide cases as long as they agreed on the decision; after all, had they been the majority on a three-person panel, they would have made the same decisions.

The Supreme Court disagreed.  It held that the National Labor Relations Act (NLRA), the law that gives the NLRB its powers, only allows the Board to delegate the authority to decide cases to a panel of at least three members.  Accordingly, no two-member panel could have decision-making authority under the NLRA. 

What does this mean for employers?  If you had one of the 600 cases decided by the two-member Board, it may mean that your case will have to be reconsidered by a new three-member panel.  We suspect, however, that the vast majority of those cases will be decided the same way.  For the rest of us, this decision will have little impact.  The two-member Board did not take up any controversial cases and did not issue any decisions that would overturn existing precedent or make "new law." 

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