WASHINGTON, D.C. - 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 17th (New Process Steel v. NLRB, 2010 U.S. LEXIS 4973, June 17, 2010).
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 June 17th 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.
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