The NLRB normally has five members, and is allowed by federal law to delegate its authority to groups of at least three members. Due to expiring appointments, the five-member Board was down to three members by December 2007, and decisions were issued by a two-member quorum of the three-member NLRB.
An employer who was held during this period to have engaged in unfair labor challenged the two-member Board’s authority to issue orders. The Seventh Circuit had concluded that the two members constituted a valid quorum of a three-member group to which the Board had legitimately delegated its powers.
The Supreme Court majority disagrees, holding that the two remaining Board members cannot exercise such authority, and holds that the delegation clause requires that a membership of three in order to exercise the delegated authority of the Board. “We are not insensitive to the Board’s understandable desire to keep its doors open despite vacancies,” the Court majority opinion states. “Nor are we unaware of the costs that delay imposes on the litigants. If Congress wishes to allow the Board to decide cases with only two members, it can easily do so. But until it does, Congress’ decision to require that the Board’s full power be delegated to no fewer than three members, and to provide for a Board quorum of three, must be given practical effect rather than swept aside in the face of admittedly difficult circumstances. [The law] as it currently exists, does not authorize the Board to create a tail that would not only wag the dog, but would continue to wag after the dog died.” New Process Steel LP v. NLRB
