Supreme Court Invalidates Decisions of Two-Member NLRB; Senate Confirms Two New NLRB Members

June 25, 2010
On June 17, the U.S. Supreme Court issued an opinion in New Process Steel v. NLRB holding that the National Labor Relations Board lacked authority to issue decisions from the end of 2007 to March 2010, when the five-member Board had only two members.  The decision effectively invalidates nearly 600 Board decisions issued during the 27-month period. On December 20, 2007, when the Board had one vacancy and anticipated two more, it delegated its powers to a group of three.  On December 31, 2007, one member of the three-member group's term expired, but the remaining two members - Democrat Wilma Liebman and Republican Peter Schaumber -- proceeded to issue decisions as a two-member quorum of a three-member group.  This continued until President Obama made two recess appointments  -- controversial Democrat Craig Becker and Democrat Mark Pearce - in March 2007. The Court held that the National Labor Relations Act, which provides that "three members of the Board shall, at all times, constitute a quorum of the Board," requires that the Board continuously maintain a membership of three in order to exercise the delegated authority.  The decision is highly significant to the litigants in the cases decided during the 27-month period, and the fate of those cases is uncertain.  However, the decision is not likely to have a significant impact on the construction industry as a whole, given that the two-member Board - which represented opposing parties and which was cognizant of the possibility of decisions being overturned - avoided deciding highly controversial, high-impact cases. Less than a week after release of the Court's decision, on June 22, the Senate -- in a surprising turn of events - confirmed Pearce for a regular appointment along with Republican Brian Hayes.  The Senate took no action on Becker. This gives the Board the following composition:
  1. Chairman Liebman: Democrat - confirmed through August 2011
  2. Member Schaumber: Republican - confirmed through August 2010
  3. Member Pearce: Democrat - confirmed through December 2013
  4. Member Hayes: Republican - confirmed through December 2012
  5. Member Becker: Democrat - recess appointment that expires at the end of 2011
With the impending expirations of Liebman's and Schaumber's terms and the general counsel vacancy created when Bush-appointee Ronald Meisburg stepped down on June 20, it is likely that further political jockeying is in store.
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