Background Materials on Two-Member Board Decisions
From January 2008 to March 2010, the Board operated with three of its five seats vacant. The two remaining members — Chairman Wilma Liebman and Member and former Chairman Peter Schaumber — issued nearly 600 decisions in cases on which they could agree, setting aside deadlocked or potentially precedent-setting cases for additional Board members. Dozens of the decisions were appealed to federal courts on the grounds that the two-member Board did not have the authority to act.
On June 17, 2010, a divided Supreme Court ruled in New Process Steel vs. the NLRB that the two-member Board lacked the authority to decide cases. At the time, about 100 of the two-member decisions were pending on appeal before the federal courts; all such cases have been or will be returned to the Board for reconsideration by at least three members. Most of the remaining decided cases have either been closed under the Board’s processes or are in some stage of compliance proceedings.
A list of all Board decisions affected by the ruling is available here.
Below are links to significant documents in the Supreme Court case and related appellate court cases.
U.S. Supreme Court decision in New Process Steel http://www.supremecourt.gov/opinions/09pdf/08-1457.pdf
Transcript of oral argument before the Supreme Court: http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-1457.pdf
Brief submitted for the NLRB by the Solicitor General of the US: http://www.justice.gov/osg/briefs/2009/3mer/2mer/2008-1457.mer.aa.pdf
Decision by U.S. Court of Appeals for the District of Columbia Circuit, against the Board:
http://pacer.cadc.uscourts.gov/docs/common/opinions/200905/08-1162-1178601.pdf
Decision by U.S. Court of Appeals for the First Circuit, in favor of the Board
http://www.ca1.uscourts.gov/pdf.opinions/08-1878P-01A.pdf
Decision by U.S. Court of Appeals for the Second Circuit, in favor of the Board
http://www.ca2.uscourts.gov/decisions/isysquery/0d6f173a-2769-4623-b6e8-7c7e434c9df6/1/doc/08-3822-ag_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/0d6f173a-2769-4623-b6e8-7c7e434c9df6/1/hilite/
Decision by U.S. Court of Appeals for the Seventh Circuit, in favor of the Board
http://www.ca7.uscourts.gov/tmp/X90K6T66.pdf
Decision by U.S. Court of Appeals for the Tenth Circuit, in favor of the Board
http://www.ck10.uscourts.gov/opinions/08/08-9568.pdf
