We've just had a quick read of the New Process Steel opinion. Essentially the 5 member majority (Stevens, Roberts, Scalia, Alito, Thomas) reason through the language of §3(b) of the NLRA to conclude the authority of a 3 member delegation of the NLRB ceases to exist when the term of one member of the three expires. I must admit the dissent written by Justice Kennedy (and joined by Ginsburg, Breyer and Sotomayor) makes more sense. The statutory interpretation opinion is less significant that the open questions concerning the 600+ cases decided by the two member NLRB. The NLRB has issued a press release concerning the 5 cases pending before the Supreme Court and the 69 cases pending before the Courts of Appeals. Likely these cases will be remanded to the NLRB.
In New Process, the Supreme Court vacated and remanded. Likely the Court of Appeals will vacate the NLRB decision and remand to the NLRB. (We think this is the likely result in all the pending cases.) But what about the cases that are final? Are the decisions null due to an absence of proper delegation? Or are they final judgments not subject to collateral attack? Would the NLRB entertain a motion to reconsider the final cases. likely not in the later instance since the cases decided were sufficiently non controversial for the two remaining members, one a democrat and the other a republican, to agree on a result. Could the now properly populated Board globally reaffirm the entirety of the two-member decisions? And also what becomes of the other delegations? The majority opinion notes without comment that "the Board delegated to the general counsel continuing authority to initiate and conduct litigation that would normally require case-by-case approval of the Board." Is the general counsel's authority to act defective, and what effect would that have on pending and decided cases.
