Today was a busy day at the Supreme Court. In addition to Quon (and three other non-labor and employment cases), it also issued its much anticipated decision in New Process Steel v. NLRB. In that decision, the Court held that the NLRB needs at least three members to act. For the last two-plus years of the Bush administration, the NLRB was acting with only two of its five positions filled. By ruling that the Board needs three members, the Court invalidated the 500+ decisions issued by that two-member board. The practical implications of this decision were not lost on the four-Justice dissent penned by Justice Kennedy:
As of the day this case was argued before the Court, the National Labor Relations Board (Board), constituted as a five-member board, had operated with but two members for more than 26 months. That state of affairs, to say the least, was not ideal. This may be an underlying reason for the Court’s conclusion. Despite the fact that the statute’s plain terms permit a two-member quorum of a properly designated three-member group to issue orders, the Court holds that the two-member quorum lost all authority to act once the third member left the Board. Under the Court’s holding, the Board was unauthorized to resolve the more than 500 cases it addressed during those 26 months….
Indeed, in my view, the objectives of the statute, which must be to ensure orderly operations when the Board is not at full strength as well as efficient operations when it is, are better respected by a statutory interpretation that dictates a result opposite to the one reached by the Court.
Looks like the NLRB is going to be very busy re-deciding those 500-plus cases. A copy of the New Process Steel opinion is available from the Supreme Court’s website, here.