Last Friday, the NLRB announced its decisions in four cases that were overturned by the U.S. Supreme Court’s decision in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010). This decision held that the two member NLRB that issued decisions in nearly 600 cases did not have the authority to do so.
The first four decisions were issued by a three-member panel that included the two members that had originally ruled on the cases. In each decision, the three-member panel affirmed the decision of the two-member panel. In none of the four decisions was a dissenting opinion filed.
If this pattern holds, the primary effect of the New Process decision will likely be delay for the parties involved. The term of Member Schaumber, however, expires at the end of this month. It is unknown whether the NLRB will be able to process all of these cases in that time. The NLRB has created a database of these cases for those interested in following the handling of them.
The larger import of New Process may well be its impact on the nomination process. Knowing that a Board with fewer than three members will be unable to act may encourage earlier resolution of disputes in the Senate over NLRB appointments.