Wyatt Employment Law Report


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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:

https://mynlrb.nlrb.gov/portal/nlrb.pt?open=512&objID=219&mode=2&cached=true

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.


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NLRB Further Responds to Supreme Court’s New Process Steel Decision

By Edwin S. Hopson

After the June 17, 2010, Supreme Court decision in New Process Steel v. NLRB in which the court invalidated Board decisions issued while there were only two Board Members serving during the period January 1, 2008 to April 5, 2010, the Board announced it would begin reviewing about 100 two-Member Board cases in order to correct the defect found by the court.  Both the Supreme Court’s majority and dissenting justices made mention of the fact that the Board had also delegated certain of its authority to the Board’s General Counsel, who acted upon that delegation during the 27 month two-Member Board period.  According to the NLRB’s  July 8, 2010, press release, the December 2007 delegation had provided “the General Counsel full and final authority on behalf of the Board to initiate and prosecute injunction proceedings under Section 10(j), or Section 10(e) and (f) of the National Labor Relations Act, contempt proceedings pertaining to the enforcement of or compliance with any order of the Board, and any other court litigation that would otherwise require Board authorization; and to institute and conduct appeals to the Supreme Court by writ of error or on petition for certiorari.”

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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.”