Today, the United States Supreme Court held that the National Labor Relations Board ("NLRB") lacked authority to issue decisions during the 26+ months that it only had 2 members.
In New Process Steel, L.P. v. NLRB, the Court held (5-4) Section 3(b) of the National Labor Relations Act requires that a delegee group maintain a membership of three in order to exercise the delegated authority of the NLRB. New Process Steel, No. 08–1457, --- S.Ct. ----, 2010 WL 2400089, at *6 (Jun. 17, 2010). Justice Stevens, joined by Justices Roberts, Scalia, Thomas, and Alito, found a straightforward reading of the text of Section 3(b) coupled with the NLRB's longstanding practice to reconstitute groups when one of the three members' terms expired compelled the conclusion that a delegee group must maintain a membership of three in order for a delegation of authority to the group to remain valid.
If the NLRB entered an order against your company during the 26 month period the NLRB had only two members, and it has not been settled or otherwise resolved, New Process Steel likely provides some recourse to the extent the Court's holding necessitates a conclusion the Board was unauthorized to resolve any cases before it during that period. The full opinion is available at