Thursday, June 17, 2010

Supreme Court Rules NLRB Lacked Authority to Issue Decisions with Two-Member Board

Earlier yesterday the Supreme Court of the United States issued its opinion (5-4) in New Process Steel, LP v. NLRB holding that the National Labor Relations Board was not authorized to issue decisions during a 27-month period when three of its five seats were vacant. Justice Stevens authored the opinion and wrote:

“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’ 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.”
The Board operated with only two members from January 2008 to late March 2010 when President Obama finally recess-appointed two additional members. The Board operated with only two members after it went to two members during President George W. Bush's tenure and Congress dilligently blocked Bush from recess-appointing his own members. So, the two-member Board issued hundreds of decisions during that period and several losing parties sought review in federal court arguing that the two-member Board lacked authority to issue those decisions. The Court of Appeals of various circuits split on the issue so, as is the case whenever the circuits split, the SCOTUS stepped in to settle the matter.

Here is the NLRB's Press Release on the decision.

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