NLRB Briefly Outlines Approach to New Process Steel Remands
Now that the National Labor Relations Board is at full strength for the first time in two-and-a-half years, earlier today, the Board issued some guidance regarding how it intends to handle cases remanded in light of the Supreme Court’s New Process Steel decision. Between December 2007 and March 2010, the Board's only two Members -- current Chairman Wilma Liebman and Member Peter Schaumber -- continued to issue decisions on behalf of the Board. They decided nearly 600 cases on which they could agree, while holding aside all others for future Board action.
On June 17, 2010, the Supreme Court ruled that the two Members lacked the authority to act on behalf of the Board, effectively rendering all of those Orders invalid. According to the Board's statement today:
At the time of the June 17 Supreme Court decision, 96 of the two-member decisions were pending on appeal before the federal courts – six at the Supreme Court and 90 in various Courts of Appeals. The Board is seeking to have each of these cases remanded to the Board for further consideration.
Each of the remanded cases will be considered by a three-member panel of the Board which will include Chairman Liebman and Board Member Schaumber. Consistent with Board practice, the two other Board members not on the panel will have the opportunity to participate in the case if they so desire.
It is unclear at this time how many of the two-member Board rulings not already challenged in the federal appellate courts can or will be contested and how many may now be moot.
Additional commentary:
- "The NLRB's Plan in Wake of New Process Steel" -- Workplace Prof Blog
- "Second Circuit denies NLRB petition in light of New Process Steel" -- Justin F. Keith, Greenberg Traurig (via Lexology)
