Supreme Court Rules NLRB Needs 3-Member Quorum for Rulings

The U.S. Supreme Court today ruled 5-4 that two members of the National Labor Relations Board do not represent a sufficient quorum to decide disputed cases before the NLRB. As the court’s majority opinion concluded in New Process Steel v. NLRB:

[We] find that the Board quorum requirement and the three-member delegation clause should not be read as easily surmounted technical obstacles of little to no import. Our reading of the statute gives effect to those pro-visions without rendering any other provision of the statute superfluous: The delegation clause still operates to allow the Board to act in panels of three, and the group quorum provision still operates to allow any panel to issue a decision by only two members if one member is disqualified. Our construction is also consistent with the Board’s longstanding practice with respect to delegee groups. We thus hold that the delegation clause requires that a delegee group maintain a membership of three in order to exercise the delegated authority of the Board.

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 swept aside in the face of admittedly difficult circumstances. Section 3(b), as it currently exists, does not authorize the Board to create a tail that would not only wag the dog, but would continue to wag after the dog died.

The NLRB operated in 2008 without a full five-member roster after Senate Democrats refused to consider President Bush’s nominations to the board and began holding pro forma sessions to prevent the President from making recess appointments.

The court’s decision means that more than 500 decisions made by the two-member NLRB must be reconsidered. Following President Obama’s two recess appointment, the NLRB now has four members — an unquestioned quorum.

Today’s majority opinion was written by Justice Stevens, joined by Roberts, Scalia, Thomas and Alito. Justice Kennedy wrote the dissent, joined by Ginsburg, Breyer and Sotomayor.

UPDATE (4:45 p.m.): The NLRB issues a news release in response. Chairman Wilma Liebman said:

“When the Board went to two members in January 2008, Member Schaumber and I made a difficult decision in difficult circumstances,” said Chairman Liebman. “In proceeding to issue decisions in nearly 600 cases where we were able to reach agreement, we brought finality to labor disputes and remedies to individuals whose rights under our statute may have been violated. We believed that our position was legally correct and that it served the public interest in preventing a Board shut-down. We are of course disappointed with the outcome, but we will now do our best to rectify the situation in accordance with the Supreme Court’s decision.”

Yes, it always seemed like a good-faith effort to do the board’s work. But now those disputed cases decided by the board but appealed to the courts will be remanded back to the NLRB, which will likely reconsider them with a 4- or 3-member quorum. (The term of sole remaining Republican, Peter Schaumber, expires in August.)

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