Labor-law attorneys had quite a day. The U.S. Supreme Court, in an unexpected decision announced today, has held that the two members of the 5-person National Labor Relations Board (NLRB), who remained after the other members’ terms expired and Congress failed to act on proposed new members did not have the statutory authority to issue rulings. As a result, nearly 600 cases have been voided. The four strict constructionists on the Court were joined by departing Justice John Paul Stevens, who wrote the opinion. Justice Anthony Kennedy, usually a swing vote, wrote a dissenting opinion joined by the liberal wing of the Court. The decision is New Process Steel v. National Labor Relations Board (08-1457).
The case hinged on language in the NLRA stating that “three members of the Board shall, at all times, constitute a quorum of the Board.” Once the Board was reduced to three members, before the third member’s term expired, the three delegated authority to act to the remaining two persons. The Supreme Court majority concluded that the three member quorum requirement had to be maintained “at all times,” while the dissent asserted that the three members needed to be in existence only at the time they delegated authority to the remaining two.
The practical effect of the decision may be minimal, since the two NLRB members who issued the decisions, current Chairperson Wilma Liebman and former Chairperson Peter Schaumber, a Democrat former union lawyer and a Republican former management lawyer respectively, had to agree in each case, so the decisions were, likely, noncontroversial philosophically.