Supreme Court Hears Oral Arguments Over Legality of Two-Member NLRB Decisions
On March 23, 2010, the Supreme Court heard oral arguments in New Process Steel L.P. v. N.L.R.B., paving the way for it to resolve the validity of hundreds of decisions issued by the depleted two-member National Labor Relations Board since January 25, 2008.
The case hinges on seemingly contradictory language in the National Labor Relations Act (”NLRA”), which states that “three members of the Board shall, at all times, constitute a quorum of the Board,” but authorizes the Board to delegate its power to any group of three or more of its members “except that” two members of any such delegated group “shall constitute a quorum” of that delegated group. Following impasses between the executive branch and the Senate in the final year of the Bush administration and the first year of the Obama administration, three vacancies have gone unfilled, leaving only two Board members, Democrat Wilma Liebman and Republican Peter Schaumber, to issue decisions. The four-member NLRB in December 2007 delegated its powers to a three-member panel which was eventually reduced to just members Liebman and Schaumber upon the expiration of the third member’s term.
In oral arguments, Deputy Solicitor General Neal Katyal defended the two-member NLRB, focusing on the “except that” language, which he argued permitted two-member quorums where the Board’s membership was depleted. Katyal also pointed to the hundreds of pre-1947 decisions issued by two members when the NLRB’s regular membership was only three. New Process Steel - which was on the losing side of a two-member panel decision - was represented by Sheldon E. Richie, who argued the delegation to the two-member panel was an evasion of the NLRA and represented delegation to a “phantom group” unable to engage in the robust debate intended under the statute.
In questioning, Justice Scalia seemed to reject the two-member panel, calling it an “evasion” of the statutory three-member quorum requirement for the full Board, while Justice Breyer seemed more sympathetic, posing a hypothetical about a delegated panel depleted after the death of a member. Chief Justice Roberts questioned the necessity for the two-member quorum, asking why the President could not fill out the Board with recess appointments.
Five federal courts of appeal have upheld the decisions of the two-member Board, while the D.C. Circuit ruled that the decisions were invalid.
President Obama’s three appointments to the NLRB, Democrats Craig Becker and Mark Pearce and Republican Brian Hayes, are in limbo following a Republican-led filibuster of Becker and the failure to achieve cloture on his nomination on February 9, 2010. All three nominations have cleared the Senate HELP Committee twice - both in 2009 and 2010 - and continue to await action by the full Senate.
For more coverage of the argument, please see SCOTUSblog.com:
