JURIST - Paper Chase: Supreme Court rules NLRB must have 3 member panel to exercise authority

[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday ruled 5-4 in New Process Steel v. National Labor Relations Board (NLRB) [Cornell LII backgrounder; JURIST report] that the NLRB lacks the authority to decide cases where only two of the five-member board are present. Section 3(b) of the National Labor Relations Act [29 USC § 153(b)] provides that three members are enough to constitute a quorum of the NLRB. The US Court of Appeals for the Seventh Circuit found [opinion, PDF] that the NLRB had acted appropriately when it continued to issue board decisions for 27 months as a two-member quorum after one group member's appointment expired. Justice John Paul Stevens, writing the opinion for the court, held that Section 3(b) requires that an NLRB quorum must maintain a membership of three "at all times" in order to exercise the delegated authority of the full board. Stevens concluded:

We are not insensitive to the Board's understandable desire to keep its doors open despite vacancies. Nor are we unaware of the costs that delay imposes on the litigants. If Congress wishes to allow the Board to decide cases with only two members, it can easily do so. But until it does, Congress's decision to require that the Board's full power be delegated to no fewer than three members, and to provide for a Board quorum of three, must be given practical effect rather than be swept aside in the face of admittedly difficult circumstances.

Justice Anthony Kennedy dissented, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. In his dissent Kennedy stated that "the objectives of the statute, which must be to ensure orderly operations when the Board is not at full strength as well as efficient operations when it is, are better respected by a statutory interpretation that dictates a result opposite to the one reached by the Court." The NLRB later released a response [press release, PDF] to the Supreme Court's ruling stating that "[t]he same question has been raised in five more cases pending before the Supreme Court, and 69 that are pending before the Courts of Appeals. It is expected that those cases will be remanded to the Board, and the now-four member Board will decide the appropriate means for further considering and resolving them."

New Process Steel [official website], a US-based steel processing company, filed suit against the NLRB in 2008 after the two-member Board issued decisions sustaining two unfair labor practice complaints against petitioner. The three member delegation was brought down to two in December 2007 when a member's appointment expired. During the 27-month period in which the Board had only two members, it decided almost 600 cases.