Supreme Court Will Decide Authority of Two-Member NLRB

By Ted Olsen

In our last newsletter, we reported that the U.S. Supreme Court had been asked to decide the question of whether the National Labor Relations Board, during the almost two-year period in which it has consisted of only two members (Chairman Liebman and Member Schaumber) has had the legal authority to review and decide over 500 cases.  The issue has arisen because the National Labor Relations Act specifies that the Board shall consist of five members.  29 U.S.C. § 153(a).  Federal courts of appeals facing the question have issued conflicting decisions. 

Since our last newsletter, on November 2, 2009, the Supreme Court, moving with uncharacteristic speed, granted the NLRB's petition for certiorari, agreeing to decide this legal question.  New Process Steel v. NLRB, Case No. 08-1457, 2009 U.S. LEXIS 7788 (U.S. Nov. 2, 2009).

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© 2010 Sherman & Howard L.L.C.                                                   January 5, 2010