NEW PROCESS STEEL v. NLRB

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Case Basics
Docket No. 
08-1457
Petitioner 
New Process Steel
Respondent 
National Labor Relations Board
Advocates
(for the petitioner)
(Deputy Solicitor General, Department of Justice, for the respondent)
Term:
Facts of the Case 

The union representing employees at a New Process Steel plant in Butler, Indiana failed to reach an agreement over a new contract with New Process Steel. The union subsequently filed unfair labor practices claims with the National Labor Relations Board ("NLRB") arguing that New Process Steel failed to honor its collective bargaining agreement to deal with the union as the exclusive representative of employees of the plant. A two-member panel of the NLRB agreed with the union. On appeal, New Process Steel argued that the NLRB's decision was invalid because 29 U.S.C. § 153(b) of the National Labor Relations Act requires that three members of the five member National Labor Relations Board shall "at all times" constitute a quorum.

The U.S. Court of Appeals for the Seventh Circuit disagreed and affirmed the judgment of the board. The court held that the NLRB had power to delegate its authority to a group of three of its members. In which case, two sitting members constituted a quorum. Therefore, the NLRB appropriately rendered its decision.

Question 

Does the NLRB have the authority to decide cases with only two sitting members, when 29 U.S.C. § 153(b) provides that "three members of the Board shall, at all times, constitute a quorum of the Board?"

Conclusion 
Decision: 5 votes for New Process Steel, 4 vote(s) against
Legal provision:

No. The Supreme Court held that the NLRBA requires that when the Board delegates its authority, the delegated group must maintain a membership of three in order to exercise the delegated authority of the Board. With Justice John Paul Stevens writing for the majority, the Court reasoned that the plain language of the statute – the Board may delegate its powers to a "group of three or more members" – required that the delegated group must have at least three members to exercise such authority.

Justice Anthony M. Kennedy, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotamayor, dissented. He criticized the majority for calling into question the more than 500 cases the NLRB address during the 26 months it carried out its responsibilities with only two members. He also disagreed with the manner in which the majority reached its conclusion.

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NEW PROCESS STEEL v. NLRB. The Oyez Project at IIT Chicago-Kent College of Law. 26 August 2014. <http://www.oyez.org/cases/2000-2009/2009/2009_08_1457>.
NEW PROCESS STEEL v. NLRB, The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/2000-2009/2009/2009_08_1457 (last visited August 26, 2014).
"NEW PROCESS STEEL v. NLRB," The Oyez Project at IIT Chicago-Kent College of Law, accessed August 26, 2014, http://www.oyez.org/cases/2000-2009/2009/2009_08_1457.