New Process Steel v. National Labor Relations Board

The Supreme Court has agreed to decide whether decisions made by only two of the National Labor Relations Board's five members are valid.

Since January 2008, with three seats on the board vacant amid feuding between Congress and the White House, the two remaining board members have made more than 400 labor decisions.

At least 60 challenges to the validity of two-member rulings have been filed in the federal appeals courts, including one from New Process Steel, which operates four steel-processing plants in the U.S. and one in Mexico.

The U.S. Court of Appeals for the 7th Circuit, in agreement with the 1st and 2d circuits, upheld the authority of two-member board decisions in the New Process Steel case. But the D.C. Circuit, in Laurel Baye Healthcare v. NLRB, held that Section 3(b) of the National Labor Relations Act requires a three-member quorum at all times.

On Nov. 2, the Supreme Court agreed to hear the case. Oral arguments will be held later this winter.

Question presented: Whether Section 3(b) of the National Labor Relations Act, 29 U.S.C. § 153(b), authorizes the NLRB to act when only two of its five positions are filled, if the Board has previously delegated its full powers to a three-member group of the Board that includes the two remaining members; does the NLRB have authority to decide cases with only two sitting members, where 29 U.S.C. § 153(b) provides that “three members of the Board shall, at all times, constitute a quorum of the Board”?