Supreme Court Says Two Is Too Few


EDITOR’S NOTE: In 2009, Constangy attorneys Cliff Nelson and Chuck Roberts successfully argued in the U.S. Court of Appeals for the District of Columbia Circuit that decisions issued by a two-member National Labor Relations Board were invalid. Five other Courts of Appeal have sided with the NLRB. Meanwhile, the first case to address the issue made its way to the Supreme Court. In a decision issued yesterday, the Supreme Court agreed, 5-4, with the position taken by the D.C. Circuit. Congratulations, Cliff and Chuck!

In a stunning blow to the National Labor Relations Board, the Supreme Court, in a 5-4 decision, invalidated more than 500 decisions issued by the Board during a 27-month period in which the Board was operating with only two members. The decision, issued yesterday, is New Process Steel, L.P. v. NLRB.

The Board is an administrative agency established by the National Labor Relations Act and is composed of five members, appointed by the President, with the advice and consent of the Senate. The Board traditionally is comprised of two Democrats, two Republicans, and a fifth member who belongs to the same party as the sitting President. The Act provides that the “Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise” and that “three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group” of three or more members to which the Board has delegated its powers.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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