Employment Law Blog

News, trends and analysis in employment law and HR

Jun 21, 2010

Supreme Court says two-member NLRB had no authority to issue decisions

Labor Relations 

The National Labor Relations Board (NLRB) must have a minimum of three members in order to issue decisions in labor disputes, ruled the U.S. Supreme Court. The NLRB normally has five members, but had been limping along with only two, a Republican and a Democrat, who together issued decisions in almost 600 cases over a 27-month period, beginning in January 2008. The Supreme Court said the National Labor Relations Act requires a minimum of three people to be active members of the Board. The Court said the law “does not authorize the Board to create a tail that would not only wag the dog, but would continue to wag after the dog died” (New Process Steel, L.P. v. NLRB, U.S., June 17, 2010).

Tips: Most of the Board’s past decisions probably will stand, since they weren’t appealed. But there are at least 74 decisions that are currently on appeal which will likely be sent back down to the NLRB, which is what the Supreme Court did in this case. We expect the current Board’s review of these cases to be much more union-friendly, since two of the vacant spots were recently filled by the President while the Senate was on recess, putting the Board membership at three Democrats and one Republican, with one Republican seat left vacant. Vigilant will keep members updated on any significant decisions.

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