On June 17, 2010, the U.S. Supreme Court ruled that the National Labor Relations Board does not have the authority to act with fewer than three sitting board members, calling into question a slew of past decisions. (The case is New Process Steel v. NLRB, No. 08-1457.)

Between January 1, 2008, and March 27, 2010, the NLRB had only two board members.  In that time, it issued nearly 600 decisions. The Supreme Court's ruling casts doubt on the validity of those decisions.

 It is not known how many of those nearly 600 decisions may need to be re-reviewed because of the Supreme Court's ruling. Any cases that do require re-review will add to the NLRB's caseload, and delays in adjudicating current cases are likely.

The NLRB currently has four members, following President Obama’s recess appointments of Craig Becker and Mark Pearce in March 2010. Three of the NLRB’s four current members are Democrats, and one is a Republican. One seat remains vacant.

What Should Employers Do?

In light of the Supreme Court's ruling, employers should review any NLRB decisions in which they were involved between January 1, 2008, and March 27, 2010, to determine if a re-review of the case is warranted. Secondly, employers with cases pending before the NLRB, or employers that are anticipating cases being filed with the NLRB in the near future, should expect those cases to take longer than usual to be addressed.

If you have questions about the Supreme Court's ruling or how it may affect your organization, or if you have any other labor- and employment-related questions, please contact Brian D. Pedrow at 215.864.8108 or pedrow@ballardspahr.com or any other member of the firm’s Labor and Employment Group.

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