Employment Law Report

New Complication to Resolving Two-Member NLRB Decisions Found Defective by the Supreme Court in New Process Steel v. NLRB

By Edwin S. Hopson

After the June 17, 2010, U.S. Supreme Court decision in New Process Steel v. NLRB in which the court invalidated National Labor Relations Board decisions issued while there were only two Board Members serving during the period January 1, 2008 to April 5, 2010, the NLRB announced it would begin reviewing about 100 two-Member Board cases in order to correct the defect found by the court.  During that two Board Member “era” the two Members were Wilma Liebman and Peter Schaumber.  It was thought that it would be a simple matter to have another one of the new Members recently appointed by President Obama to review each case record and then either join in Liebman and Schaumber’s decision or file a dissent in order to correct the defect.

However, the various reviewing federal courts of appeal have not returned all the cases to the Board.  Many remain to be remanded.  See:


On Friday, August 27, 2010, the term of Peter Schaumber, a Republican appointee member of the National Labor Relations Board, expires and the NLRB goes from five members down to four:  three Democrats and one Republican.  More significantly, it will now take TWO of the new Members to review each remaining case and either join Liebman’s decision or file a dissent.

The “new” panel could even reverse the prior decision since only Liebman remains on the Board from the original two member Board after August 27, 2010.

This result could add further delay to resolving the cases affected by the New Process Steel v. NLRB decision.