Employment Law Report

NLRB Outlines Process to Deal with Cases Nullified by New Process Steel Decision

By Edwin S. Hopson

In a July 1, 2010 press release the National Labor Relations Board announced how it planned to deal with the nearly 600 cases decided between January 1, 2008 and early April  2010 when there were only two members of the five-member Board in office, a process that was nullified on June 17, 2010, by the U.S. Supreme Court in its New Process Steel v. NLRB decision.

According to the NLRB, at the time of the Supreme Court’s decision, 96 of the two-member decisions were pending on appeal – six at the Supreme Court and 90 in various U.S. Circuit Courts of Appeals. The NLRB is in the process of seeking to have these cases remanded to the Board.  Each such case will then be considered by a three-member panel of the Board which will include Chairman Liebman and Board Member Schaumber. Additionally, consistent with its prior practice, the two other Board members not on the panel will have the opportunity to participate in the case if they so desire.

The NLRB stated also that “[i]t is unclear at this time how many of the two-member Board rulings not already challenged in the federal appellate courts can or will be contested and how many may now be moot.”