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Washington Labor & Employment Wire » Eighth Circuit Upholds Post-New Process Steel NLRB Delegation

Eighth Circuit Upholds Post-New Process Steel NLRB Delegation

On April 22, the Eighth Circuit upheld the decision of a three-member NLRB panel in NLRB v. Whitesell Corp., No. 10-2934 (8th Cir.). Following the Supreme Court’s June 2010 decision in New Process Steel, L.P. v. NLRB, __U.S. __, 130 S.Ct. 2635 (2010), which invalidated hundreds of NLRB decisions presided over by a panel of the two then-remaining members of the NLRB, this Eighth Circuit decision paves the way for the NLRB to seek enforcement of hundreds of invalidated decisions after reconsideration by three-member panels.

Following impasses between the executive branch and the Senate in the final year of the Bush administration and the first year of the Obama administration concerning Board appointments, three NLRB vacancies went unfilled between December 2007 and March 2010, leaving only two Board members, Democrat Wilma Liebman and Republican Peter Schaumber. In December 2007, the existing four-member NLRB had delegated its powers to a three-member panel.  That three-member panel was eventually reduced to Liebman and Schaumber upon the expiration of the third member’s term. These remaining two NLRB members continued to issue decisions. In New Process Steel, the Supreme Court invalidated those decisions as violating the NLRB’s three-member statutory quorum requirement.

In Whitesell Corp., the Eighth Circuit upheld a three-member panel’s post-New Process Steel reconsideration of a 2008 decision by the two-member panel. In light of New Process Steel, the court had previously declined to enforce that two-member panel decision. The court ruled that the previous denial of enforcement would not affect its decision to enforce a proper decision taken by a three-member NLRB panel reconsidering the initial decision. The Eighth Circuit opinion in Whitesell Corp. signals that federal appellate courts will enforce decisions of three-member panels rehearing the invalidated two-member decisions, making it likely that the NLRB will address the invalidated two-member panel cases in this manner.