July 28, 2010
What is the Impact of Decisions Issued By Two-Member NLRB?
A Human Resources E-Alert
Past Issues of Human Resources E-Alerts
The U.S. Supreme Court recently held that the National Labor Relations Board (NLRB) issued decisions for more than two years without statutory authority to do so. New Process Steel, LP v. NLRB. The decision has implications for approximately 600 NLRB decisions.
The NLRB is a federal agency tasked with administering the National Labor Relations Act, the primary law governing relations between unions, employees and employers in the private sector. From January 2008 to late March 2010, three of the Board’s five seats were vacant. Nonetheless, the Board continued to operate with its remaining two members—one Democrat and one Republican—issuing decisions in approximately 600 labor disputes. The U.S. Supreme Court decided in New Process Steel that the Board lacked authority to issue these decisions because it lacked the three-member quorum necessary to hear and decide cases.
This decision raises many questions for the parties to each of the implicated Board rulings. As to those cases that have not yet finally concluded (i.e., the approximately 90 cases still being challenged on appeal), the fix should be relatively easy. The Board is currently operating at full strength (five members). The Board announced it would seek to have each of the appellate court cases remanded to the Board for further consideration by a three-member panel, consisting of the two members who issued the rulings along with a randomly assigned third member.
The impact of the decision on cases not currently on appeal is less certain. There is no time limit to request a review of a Board order. Whether parties will be able to (or want to) reopen otherwise final cases or reverse actions they have taken pursuant to an invalid Board order remains to be seen. For example, can an employer now lawfully terminate an employee who had been rehired in compliance with a Board order that had been issued without statutory authority?
As future litigation or Board decisions shed new light on these issues, we will continue to keep you updated.
This E-Mail Alert was prepared by
Donald Keller and Elizabeth Stock.
If you have any questions about this topic or any other
employment law issue please contact any member of the Bricker & Eckler
Employment and Labor Group.