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Supreme Court Says Two-Member NLRB Had No Authority to Issue Decisions

A divided Supreme Court ruled Thursday that the National Labor Relations Board had no authority to issue decisions during a two year period when it operated with only two of its five members.

From January 2008 through March 2010, the NLRB issued more than 600 decisions with only two members because of unfilled vacancies on the board. On March 27, President Obama used his power of recess appointment to name two new board members.

Ruling in New Process Steel v. National Labor Relations Board, the high court, on a 5-4 vote, said the board had been acting without statutory authority because the vacancies had left it without a quorum.

Allowing two members to make decisions because Congress and the White House can't agree on new members would be letting the board "create a tail that would not only wag the dog, but would continue to wag after the dog has died," Justice John Paul Stevens wrote for the majority.

Five circuits had upheld the right of the two-member board to issue decisions, but the D.C. Circuit had invalidated such a decision.

According to a press release from the NLRB, "The same question [of whether decisions by the two-member board are valid] has been raised in five more cases pending before the Supreme Court, and 69 that are pending before the Courts of Appeals. It is expected that those cases will be remanded to the Board, and the now-four member Board will decide the appropriate means for further considering and resolving them."

It is not clear whether the board will have to reconsider decisions that had not been appealed.

Senior Editor

Mary Swanton

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