In the wake of the recent Supreme Court decision holding that the National Labor Relations Act (NLRA) requires that the National Labor Relations Board (NLRB) must operate with at least three members in order to exercise its full authority, the NLRB has issued a roadmap (pdf) explaining how it will handle cases sent back to the agency that were decided by only two acting members. It is estimated that nearly 600 cases were adjudicated in this fashion during the 27-month period before President Obama used his recess appointment power in March to seat members Craig Becker (D) and Mark Pearce (D). The Senate confirmed the nominations of Pearce and Brian Hayes (R) in June, restoring the NLRB to full power.
According to the NLRB, at the time the Supreme Court issued its June 17 decision, “96 of the two-member decisions were pending on appeal before the federal courts – six at the Supreme Court and 90 in various Courts of Appeals. The Board is seeking to have each of these cases remanded to the Board for further consideration.” As discussed in the NLRB press release, each of the remanded cases will be considered by a three-member panel of the Board, which will include Chairman Wilma Liebman (D) and NLRB Member Peter Schaumber (R), the two members who initially decided the remanded cases. “Consistent with Board practice, the two other Board members not on the panel will have the opportunity to participate in the case if they so desire.” With respect to two-member Board rulings not already challenged in the federal appellate courts, the press release stated that it is unclear at this time how many of such rulings can or will be contested and how many may now be moot.