The United States Supreme Court today handed down its long-awaited decision in New Process Steel L.P. v. National Labor Relations Board, 08-1457.  The Court ruled that for 27 months, beginning in December 2007 and ending when President Obama’s March 2010 recess appointments were sworn-in, Chairwoman Wilma Liebman and Member Peter Schaumber alone were not authorized to act on behalf of the Board.  This decision calls into question the status of some 600 decisions handed down by the "two-member Board" during this time.

The 5-4 decision describes its holding thus:

The first sentence of [29 U.S.C.] §3(b), the so-called delegation clause, authorizes the Board to delegate its powers only to a "group of three or more members." This clause is best read to require that the delegee group maintain a membership of three in order for the delegation to remain valid.

The majority opinion posits that ""had Congress intended to authorize two members to act on an ongoing basis, it could have used straightforward language."   Justice Stevens’ opinion acknowledges the Board’s "understandable desire to keep its doors open," and "the costs that delay imposes on …litigants."  Still, the majority concluded that until Congress decides to amend the law, it’s clear language requiring delegation "to no fewer than three members" must prevail. 

Justice Kennedy filed a dissent on behalf of four Justices, arguing:

…the objectives of the statute,which must be to ensure orderly operations when the Board is not at full strength as well as efficient operations when it is, are better respected by a statutory interpretation that dictates a result opposite to the one reached by the Court.

Additional commentary: