As reported on this blog last month, the U.S. Supreme Court ruled that the Board did not have the authority to rule on cases with only two members. The Board has recently announced its plan to handle the remand of the cases that were decided by just two members, and that parties had appealed to the Supreme Court and the various federal courts of appeal.
A press release issued by the Board today reads:
"During a 27-month period that ended with the recess appointments of two members last March, the Board operated with two members: current Chairman Wilma Liebman and former Chairman and Board Member Peter Schaumber. They decided nearly 600 cases on which they could agree, while those remaining were held for additional Board members. At the time of the June 17 Supreme Court decision, 96 of the two-member decisions were pending on appeal before the federal courts – six at the Supreme Court and 90 in various Courts of Appeals. The Board is seeking to have each of these cases remanded to the Board for further consideration. Each of the remanded cases will be considered by a three-member panel of the Board which will include Chairman Liebman and Board Member Schaumber. Consistent with Board practice, the two other Board members not on the panel will have the opportunity to participate in the case if they so desire."
Labor professionals should watch the Board’s actions on these cases over the next few weeks. Member Schaumber’s term expires in August, leaving only a few weeks for these cases to be handled in the fashion outlined in the Board’s press release. If Member Schaumber is not reappointed, and if the cases are not resolved prior to the expiration of his term, the three member panel that will consider these rulings will no longer have as a majority the two members who initially ruled on the case as a two-member Board.