The U.S. Supreme Court held yesterday that the National Labor Relations Board did not have the authority to issue rulings from January 2008 to March 2010 when there were only two members sitting on the Board.
Normally the NLRB is comprised of five members. In December 2007, the terms of three of the five members expired, and no new appointments had been made. Prior to the expiration of the term, all five members agreed to delegate their authority to a three-member panel, as the National Labor Relations Act provides that the Board may delegate its powers only to a “group of three or more members.” Even though there were only two members remaining, the Board decided that two members constituted a quorum of the theoretical three-member panel and therefore had the authority to issue decisions for the Board.
The Supreme Court disagreed, holding that Congress specifically required in the NLRA that the Board’s full power could be designated to no fewer than three members. Thus, three members constitutes a quorum, and the Board had no authority to decree that a “quorum of a quorum” would be sufficient. As a result, the nearly 600 NLRB cases decided by the two-person panel from January 2008 to March 10 are now void. It is expected that the current four-member NLRB will decide how to resolve those cases.