The National Labor Relations Board was told by the U.S. Supreme Court in June that it had lacked authority to issue hundreds of decisions and orders from January 2008 through April 2010 with only two members in office. At the time of the High Court’s ruling in New Process Steel, L.P. v NLRB, 130 S.Ct. 2645 (2010), nearly 100 cases were pending in the Supreme Court or the courts of appeals involving such Board decisions. It was clear then that these cases would have to be revisited by the Board having a proper quorum. That process has now begun. However, it is hardly reassuring.
On August 5, the Agency issued four brief decisions and orders in these previously heard cases. In three of them, the courts of appeals had denied enforcement to the Board’s orders on the authority of New Process Steel. In the fourth, the appellate court had remanded the case to the agency for further proceedings before the case was decided. The decisions are virtual clones. Dutifully reciting that the current three-member panel had considered the administrative law judge’s decision in light of the exceptions and briefs (filed earlier), the NLRB panel summarily reaffirmed its previous two-member decision in each of the cases, for the reasons already stated, incorporating by reference the earlier decision in the new determination. Chairman Liebman and Member Schaumber, who had issued the earlier, defective decisions and orders, were members of the panel in each instance, joined by Member Pearce. They explained:
Consistent with the Board’s general practice in cases remanded from courts of appeals, and for reasons of administrative economy, the panel includes the members who participated in the original decision. Furthermore, under the Board’s standard procedures applicable to all cases assigned to a panel, the Board members not assigned to the panel had the opportunity to participate in the adjudication of this case any time up to the issuance of this decision.
This explanation is consistent with a press release issued earlier explaining the Board’s intentions.
The Board plainly is giving short shrift to its compulsory reexamination. It is going through the motions. It is reassigning these matters to the same two members who considered them originally, and evidently is not soliciting any further briefing or argument. The results are easily foretold. Rubber stamps are the order of the day.
Does this numbing exercise suffice? We don’t know, but the Board’s cursory treatment is likely to produce its own spate of appeals. The circuit courts, and perhaps the Supreme Court, then have a chance to consider whether the Board has made amends for its past mistakes.