Supreme Court Invalidates Decisions Made by Two-Member NLRB Panel

Wendy Angel
Public Relations Coordinator
Constangy, Brooks & Smith, LLP
404-230-6724 Office
Wangel@constangy.com

Decision reaffirms District of Columbia Circuit decision in related Laurel Baye of Lake Lanier v. NLRB case

ATLANTA- In a decision this morning, the U.S. Supreme Court ruled that two-member decisions made by the National Labor Relations Board (NLRB) are invalid, necessitating 600 decisions by the Board to be reconsidered. The NLRB is a five-member board when fully appointed, and statute calls for three-member quorums.

The decision in New Process Steel v. NLRB reaffirms the decision made by the District of Columbia Circuit in a related case handled by Constangy, Brooks & Smith, LLP, that also challenged the validity of two-member decisions. Laurel Baye of Lake Lanier v. NLRB was one of many cases that challenged the validity of the NLRB’s power as a two-member Board, but it was the only case in which the court of appeals held that such decisions were invalid. Five other courts of appeals upheld the right of the two-member Board to issue decisions before the Supreme Court agreed to decide the issue in the case of New Process Steel v. NLRB because of disagreement among courts.

“This decision clearly tells Congress that there is a limit to the political games they can play,” says Charles Roberts, partner with Constangy, Brooks & Smith who handled the Laurel Baye case. “If the Board members had refused to delegate to the two-member panel, the Board would have shut down, forcing Congress and Bush to have made some accommodations regarding his NLRB nominees. If the Supreme Court had upheld this case, it would have set a dangerous precedent. Businesses now can be reassured that in the future, cases before the NLRB will be given the full consideration they were intended to have. This decision will have an enormous impact on the 600 labor cases that have now been invalidated, causing a backlog in the NLRB because of cases that now have to be re-decided."

From January 1, 2008 through March 2010, because of unfilled vacancies, the NLRB issued more than 600 decisions with only two members. On March 27, two new Board members were recess appointed. The NLRB will now have to reconsider all 600 cases, unless they have otherwise been resolved in last two years.

About Constangy, Brooks & Smith, LLP:

Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A “Go To” Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, Super Lawyers, and Top One Hundred Labor Attorneys in the United States. More than 120 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Georgia, Florida, South Carolina, North Carolina, Tennessee, Alabama, Virginia, Missouri, Illinois, Wisconsin, Texas, California, Massachusetts and New Jersey. For more information, visit www.constangy.com.