Labor & Employment Law

NLRB cannot act when only two of its five positions are filled (5-4)

The US Supreme Court today decided (5-4) that the NLRB cannot act when only two of its five positions are filled.

New Process Steel v. NLRB (US Supreme Ct 06/17/2010).

The NLRB had only two Members (instead of the normal five Members) from the end of 2007 until March 2010. Near the end of 2007, there were still four Members, and they delegated their powers to a group of three. On December 31, one of the group Member's term expired, and the remaining two Members issued nearly 600 Board decisions over the next 27 months.

The US Supreme Court (5-4) held that NLRA Section 3(b) requires that a delegee group maintain a membership of three in order to exercise the delegated authority of the NLRB. The Court said,

"reading the delegation clause [the first sentence of §3(b)] to require that the Board?s delegated power be vested continuously in a group of three members is the only way to harmonize and give meaningful effect to all of the provisions in §3(b)."

Full post as published by Ross' Employment Law Blog on June 17, 2010 (boomark / email).