The Supreme Court issued its decision this morning in the closely-watched case New Process Steel, L.P. v. NLRB.  The issue in the case was whether decisions of the National Labor Relations Board that were decided by only two Board Members are valid.

The National Labor Relations Act (“Act”) established a five-member NLRB and requires that the Board have a quorum of three members to decide cases.  Like the Courts of Appeals, the Board can decide cases in three-member panels, with two members constituting a quorum.  Faced with impending vacancies on the Board, in 2007 the four remaining members delegated all of their powers to a group of three Members, one of whose terms expired a few days later.  Thereafter, the Board took the position (relying on an opinion from the DOJ), that the remaining two Members could continue to issue decisions as a “quorum” of the group even though one of the members was no longer a part of the Board.

Not surprisingly, many employers and unions challenged the Board’s authority to issue decisions with only two Members.  The Supreme Court granted cert. in New Process to resolve this important question of labor law.

The Court held that the plain language of the statue, as well as the Board’s history of not acting when it lost a quorum, supported New Process’ interpretation of the statute.  The vote was 5-4, with Justice Stevens writing the majority opinion, which concluded that:

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.

GT and Richie & Gueringer, P.C. represented New Process Steel before the Supreme Court.