In a 5-4 decision, the Supreme Court has ruled that the National Labor Relations Board (the “Board”) acted without authority during the 27-month period in which it operated with only two members.  The Court’s ruling in New Process Steel, L.P. v. NLRB effectively invalidates nearly 600 National Labor Relations Act decisions issued by the Board from January 2008 through March 2010.  The majority opinion, authored by Justice Stevens, concluded that because the Board as a whole did not have at least three members, a quorum of the Board did not exist, and the Board could not act.  In a press release issued in response to the Supreme Court’s ruling, the Board indicated that New Process Steel and other pending cases challenging the two-member decisions, five of which are currently before the Supreme Court with another 69 pending in the federal courts of appeal, are expected to be remanded for consideration  by the current Board, consisting of Members Liebman, Schaumber, Becker,  Pearce, and Hayes.   It seems likely that membership issues may continue to plague the Board.  With Member Schaumber’s term expiring on August 27, 2010, the Board will  be left with only four members. Given that  the term of Member Liebman and the recess appointment of Member Becker  are set to expire in  2011, the Board could  again  be reduced to two unless the Senate acts to confirm additional nominees.   

For further information on the Supreme Court's ruling and its potential impact, see our Legal Alert here