In New Process Steel v. National Labor Relations Board, the Supreme Court concluded that the NLRB (hereinafter the "Board") did not have the authority to issue decisions during the 27 month period in which the Board was comprised of just two members. Of the approximately 600 cases decided by the Board during this period, the Supreme Court remanded 96 cases to the Board that were on appeal before the federal courts (including six before the Supreme Court). The panel that originally decided these cases, Chairman Liebman and Member Schaumber, will participate in the remand and the other three recent appointees will have the opportunity to participate in the decision if they so choose.
Therefore, it is unclear whether the remanded cases or any of the other decisions rendered by the two-member Board, but not yet appealed, will be modified or otherwise affected by the decision in New Process Steel.
Further, it should be noted that Member Schaumber's term will expire on August 27, 2010. If he is not provided an additional term, any decision by the two-member Board that has not been reviewed or settled prior to August 27th will need to have a new member substituted for Schaumber thereby increasing the uncertainty as to whether those underlying decisions will stand.