HR Management & Compliance

Supreme Court Holds Two-Member NLRB Lacked Quorum, Authority

This morning, the U.S. Supreme Court issued a surprising 5-4 decision holding that the previously short-staffed National Labor Relations Board (NLRB) acted without authority over the two years it had only two members. As a result, more than 500 opinions decided by that Board are now invalid and will need to be readdressed.

In addition to administering the National Labor Relations Act (NLRA), which regulates labor relations in the private sector, the NLRB regulates union elections and union-related conduct, develops labor policies for decisionmaking, and polices labor-management relations through the prosecution of unfair labor practice proceedings. By statute, the NLRB is designed to have five members and is usually balanced with two Democrats, two Republicans, and one Independent.

However, from January 2008 until March 2010, the NLRB functioned with only two members, with the terms for the other three members having expired and no new members nominated. The government justified the Board’s continued function by arguing that it fulfilled the quorum requirement through a series of loopholes that would have permitted the NLRB to include a third member of the group for just one minute before term expiration — long enough to delegate powers to the remaining two members.

The Supreme Court found that theory unconvincing, noting that the idea undermined the quorum requirement that the Board’s full power be vested in no fewer than three members. The majority opinion, delivered by Justice John Paul Stevens, further noted that if Congress “had intended to authorize two members alone to act for the Board on an ongoing basis, it could have said so in straightforward language.”

The case is New Process Steel v. NLRB, and the opinion may be found at

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