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In the U.S. Supreme Court clash over the authority of a two-member National Labor Relations Board to issue decisions, the parties — the government and New Process Steel — now agree on something: The case is not moot because of the recess appointments of two additional board members. The justices on April 16 asked the parties for new briefs on what effect the March 27 appointments of Craig Becker and Mark Pearce might have on the case, New Process Steel v. National Labor Relations Board. The case was argued on March 23. Last week, the government in its letter to the Court said the recess appointments do not affect the nearly 600 other cases decided by the two-member board between Jan. 1, 2008, and March 26, 2010. Also not affected, noted the government, are an additional 76 cases pending in or decided within the last 90 days by the courts of appeals in which litigants have challenged (or a court has sua sponte raised) the validity of the board’s decision because it was entered by the two-member quorum. “All of these cases present live controversies because it remains the Board’s position that the orders at issue are entitled to enforcement and that parties are obliged to comply with the judgments of the courts that have enforced such orders,” wrote Solicitor General Elena Kagan on April 26. The government also told the Court that NLRB Chair Wilma Liebman and member Peter Schaumber have issued approximately 500 orders that no party has yet appealed. Many of those decisions are in potential jeopardy as a result of the uncertainty over the quorum and delegation provisions of the National Labor Relations Act. “[A]n unknown but potentially large portion of those 500 orders could require reconsideration if this Court does not resolve the validity of the two-member decisions,” added Kagan. New Process Steel’s counsel, Sheldon Richie of Richie & Gueringer in Austin, Texas, told the Court, “The NLRB has fallen below three members on several occasions in the past. It is likely that the NLRB may again fall to two members in the future and then as now, the decisions reached by this shorthanded Board will be undermined by uncertainty. The better public policy calls for a resolution of this case on its merits at this time.” Richie noted that the recess appointments will run out at the end of the Senate’s next session in late 2011. Schaumber’s appointment terminates in August 2010. “The Board could, therefore, find itself with as few as one member at the end of next year with no relief in sight until the next recess,” he told the justices in his April 26 letter. A third nominee to the NLRB — Brian Hayes — is awaiting Senate confirmation. Hayes is Republican labor policy director for the U.S. Senate Committee on Health, Education, Labor and Pensions.

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