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Supreme Court Invalidates 600 NLRB Decisions

On June 17, 2010, the U.S. Supreme Court, in another five to four decision, invalidated 27 months of decisions by the National Labor Relations Board (“NLRB”).  Those decisions (around 600) resolved various labor disputes, including unfair labor practice allegations, union election disputes, and collective bargaining disputes.  The problem was those decisions were made by a two member NLRB.  The Court found once the NLRB was reduced to two members, it lacked authority to decide cases.

At the heart of this case was the interpretation of an amendment to the National Labor Relations Act.   That amendment raised the total number of NLRB members from three to five.  However, it allowed the five-member NLRB to delegate its authority to three members.  This three-member “delegee” group can decide cases as long as there was a quorum of two members when any decision was made.  Therefore, (as the Court explained) if one member was unavailable (e.g., due to illness) or was disqualified due to a conflict of interest, the remaining two members could decide the case.

What happened, however, was after the NLRB delegated its authority to a three-member group, the appointment of three of the members expired leaving only two members.  Now the question was whether those two members still qualified as a quorum in the complete absence of a third member.  The Supreme Court said no; although the five-member NLRB properly delegated its authority to a three-member group, once that group was reduced to two, that authority expired.  As a result, all 600 decisions are no longer valid.

The question now is: how do all the employers involved in these two-member decisions rewrite their history since the decision was rendered?  Do they just pretend the last two years didn’t happen, and if so, how do they recoup money that was spent and reverse employment related decisions made based on those NLRB decisions?  It is not clear whether the NLRB will re-hear those cases or whether the NLRB (now consisting of four members) will somehow rubber-stamp the old decisions.  We will keep you posted on further developments.  In the meantime, if you had case before the NLRB in the past two and a half years, consult labor and employment counsel on what, if anything, to do next!
