Overview

In an opinion that effectively invalidates more than two years worth of National Labor Relations Board (NLRB) decisions, the United States Supreme Court held recently that the NLRB lacked authority to issue decisions in unfair labor practice and representation cases when it was composed of fewer than three members between January 2008 and March 2010.

By law, the NLRB should have a complement of five members, with the longstanding practice that the President appoints three members of his own party and two members from the opposition. Like many senior administrative positions, NLRB members are subject to confirmation by the Senate. While the political nature of the appointment process has historically resulted in temporary vacancies from time to time, the NLRB recently endured an unprecedented twenty-seven month stretch with three vacancies starting in January 2008. The two remaining members, now-Chairman Wilma Liebman (a Democrat) and Member Peter Schaumber (a Republican), attempted to carry on the Board's business by issuing decisions where both could agree on the outcome.

Despite their philosophical differences and their purposeful avoidance of issues they perceived as controversial or novel, Liebman and Schaumber managed to issue 595 decisions before President Obama made two recess appointments effective in April 2010 to temporarily bring Board membership back up to four, and a further appointment in June 2010 to bring the Board membership up to five.

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