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Split Supreme Court: NLRB Must Have At Least 3 Members For Ruling

WASHINGTON, D.C. - (Mealey's) The National Labor Relations Board must maintain a membership of at least three members to exercise any authority delegated by the full board, a closely divided U.S. Supreme Court ruled June 17 (New Process Steel, L.P. v. National Labor Relations Board, No. 08-1457, U.S. Sup.).

In the beginning of December 2007, the NLRB was made up of four members, with one seat remaining vacant.  Two of the members' terms were set to expire Dec. 31, 2007, during a time when Congress would be adjourned and no board appointments would be made.  So on Dec. 28, 2007, the board delegated all of its powers to a three-member panel, which is allowed under the National Labor Relations Act (NLRA), making two members a quorum.  After the two members' terms expired and no replacements were named, the board proceeded to operate with what it believed was a two-member quorum.

New Process Steel (NPS), which was battling with the International Association of Machinists & Aerospace Workers, AFL-CIO, District Lodge 34, over their collective bargaining agreement, lost its battle before a two-member NLRB.  NPS filed petitions to review the board's orders in the Seventh Circuit U.S. Court of Appeals, and the board filed cross-applications for enforcement.  On May 1, 2009, the appellate panel affirmed the NLRB's decision, and NPS filed a petition for a writ of certiorari with the U.S. Supreme Court.  The petition was granted Nov. 2.

Issuing the majority opinion, Justice John Paul Stevens opined, "Although the group quorum provision [of the NLRA] clearly authorizes two members to act as a quorum of a 'group designated pursuant to the first sentence'-i.e., a group of at least three members-it does not, by its plain terms, authorize two members to constitute a valid delegee group.  A quorum is the number of members of a larger body that must participate for the valid transaction of business.  . . .  But the fact that there are sufficient members participating to constitute a quorum does not necessarily establish that the larger body is properly constituted or can validly exercise authority.  In other words, that only two members must participate to transact business in the name of the group, does not establish that the group itself can exercise the Board's authority when the group's membership falls below three."

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel Anthony Alito Jr. joined in the opinion.

Justice Anthony M. Kennedy dissented.  He opined that under 29 U.S. Code Section 153(b), "a two-member quorum of that group had statutory authorization to issue orders; and that is precisely what Members [Wilma B] Liebman and [Peter] Schaumber did."  Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor joined in the dissent.

[Editor's Note:  Full coverage will be in the July 2010 issue of Mealey's Litigation Report: Employment Law.  In the meantime, the opinion is available at or by calling the Customer Support Department at 1-800-833-9844.  Document #73-100716-005Z.  For all of your legal news needs, please visit]

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For more information, call editor Bajeerah LaCava at 610-205-1102, or e-mail her at