In a 5-4 decision, the U.S. Supreme Court recently held that the National Labor Relations Board may not continue to exercise delegated authority once the board’s membership falls to two. New Process Steel L.P. v. NLRB, No. 08-1457 (June 17, 2010). In an interesting split, Justice John Paul Stevens delivered the opinion of the Court and Justice Anthony Kennedy wrote the dissent.
In 1947, the Taft-Hartley Act increased the size of the National Labor Relations Board from three members to five. 29 U.S.C. 153(a). Concurrent with that change, the Taft-Hartley Act amended § 3(b) of the National Labor Relations Act (NLRA) to increase the quorum requirement for the board from two members to three, and to allow the board to delegate its authority to groups of at least three members. See § 153(b). The issue decided in this case was whether, following a delegation of the board’s powers to a three-member group, two members may continue to exercise that delegated authority once the group’s (and the board’s) membership falls to two. The Court held that the two remaining board members cannot exercise such authority.
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