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 about 550 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. About 100 two-member decisions were returned to the Board, either by the federal courts or by the parties themselves, and new decisions were issued. As of March 2013, new decisions had been issued on all returned cases, and nearly all of the remaining two-member cases were closed under the Board’s processes with no review required.
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
