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.

 

 

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Photo of Justin Keith Justin Keith

Justin F. Keith represents employers in all areas of labor and employment law—including reductions in force, litigation of discrimination, harassment, whistleblower, and retaliation claims, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

Justin Co-Chairs

Justin F. Keith represents employers in all areas of labor and employment law—including reductions in force, litigation of discrimination, harassment, whistleblower, and retaliation claims, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

Justin Co-Chairs the firm’s Labor & Employment Practice’s Labor-Management Relations group and advises clients in all areas of traditional labor law, including union organizing campaigns, collective bargaining negotiations, unfair labor practice charges and representation case proceedings before the NLRB, union avoidance strategy and training, strike response and contingency planning, grievance arbitration proceedings, and appellate litigation before the NLRB and the Courts of Appeals. Justin was co-counsel to New Process Steel in the landmark Supreme Court case, New Process Steel v. NLRB, 560 U.S. 674 (2010). He is also a contributing editor of The Developing Labor Law, the leading treatise on U.S. labor law, and a frequent speaker to legal and industry groups on labor and employment issues.

Justin has litigated dozens of wage and hour class actions brought under the Massachusetts Wage Act and nationwide collective actions under the Fair Labor Standards Act. He represents employers across a broad spectrum of industries, including retail, transportation, delivery services, and telecom services in nationwide class and collective actions brought throughout the country.

Justin regularly provides counsel to senior management and human resource personnel on employment law compliance matters, such as reductions in force, leaves of absence, exempt status classification under the FLSA and state law, employee discipline, sexual harassment, discrimination and retaliation, and restrictive covenant agreements.