On June 17, 2010, the United States Supreme Court issued a split 5-4 decision invalidating nearly 600 decisions the National Labor Relations Board (“NLRB”) issued between January 1, 2008 and March 27, 2010. New Process Steel, L.P. v. National Labor Relations Board, 560 U.S. ____ (2010). In New Process Steel, the Supreme Court ruled that the invalidated decisions had been issued by a two member quorum of NLRB members when at least three members had to participate for valid decision-making.
The issue arose because the NLRB only had two members rather than its normal five member complement during the time when two members issued the NLRB decisions. Anticipating the reduced number of members, the NLRB delegated its authority to groups of at least three members in December 2007. The Supreme Court held that this delegated authority could not be exercised when only two members made the decision for the NLRB. In order to issue valid decisions, New Process Steel holds “that the Board’s delegated power had to be vested continuously in a group of three members.”
The issue affects decisions of the Board, not the Regional Offices of the NLRB or the actions of the Office of the General Counsel. It does not affect Board decisions issued before January 1, 2008 or on or after March 27, 2010 as the NLRB had three or more members during those time periods.