Since January 2008, the National Labor Relations Board (NLRB) has operated with only two members. It's supposed to have five. But rather than come to a complete standstill while awaiting new appointees, the two remaining members have been hearing and deciding cases, despite some uncertainty about whether they even have legal authority to do so.
That uncertainty has given parties unhappy with the outcome of a board hearing an interesting issue for appeal. Challenges to the authority of the two-member board have come before the 1st, 2nd, 7th, 8th and D.C. Circuit Courts. More than 300 NLRB decisions issued in the past year could be invalidated, depending on the outcome of those challenges.
On The Horizon
President Obama finally selected two new NLRB members in late April (see "The New Nominees"), but it could take some time before they are confirmed by the Senate and sworn in, so the important issues will continued to be deferred. But once they are seated, employers with union workforces should brace themselves for change.