The National Labor Relations Board is a federal agency that, among other things, resolves cases involving alleged unfair labor practices by employers and unions. The Board generally has five members, all of whom are appointed by the President. Due in large part to political disagreements, however, the Board operated with only two members from January of 2008 to late March of 2010. In that 27 month time span, the two-member Board issued over 500 decisions.

On June 17, 2010, the United States Supreme Court issued an opinion in the case of New Process Steel v. National Labor Relations Board that arguably re-opens all of the decisions issued by the two-member Board. More specifically, the Supreme Court held that a two-member Board lacked the authority to resolve cases because a Board comprised of only two members was not a quorum — at least three members of the Board needed to present for the Board to properly act.

So what does that mean? The impact of the decision is not entirely clear. For the two-member Board decisions that are not yet final, such as those on appeal (a Board press release estimates that approximately 75 decisions are on appeal), they would simply be vacated and remanded for a de novo review by a properly constituted Board. A trickier question arises for all of the two-member Board decisions that are now final. If challenged, they would seemingly also have to be reopened in light of the Supreme Court’s decision; and, even if those final decisions are not challenged, the Supreme Court’s decision then creates an issue as to whether or not the two-member Board’s decisions have any precedential effect.

In addition to the numerous issues created by the Supreme Court’s ruling, one day after this decision was released by the Supreme Court, the Board’s General Counsel’s resignation became effective. This creates another vacancy that will have to be filled by President Obama. The General Counsel’s appointment will be of significance as the General Counsel plays a large role in setting the agenda of cases that come before the Board.

As a final note, commentators viewed many decisions by the two-member Board, which consisted of one Democrat and one Republican, to be of little significance. Going forward, as President Obama fills the Board, it remains to be seen if the Board and its General Counsel will seek out significant issues and if it will move in a decidedly pro-labor direction as many predicted with the election of President Obama.

The entire Supreme Court decision can be found at:

http://www.law.cornell.edu/supct/html/08-1457.ZO.html