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New Process Steel v.
National Labor Relations Board (08-1457)
Is the NLRB authorized to act when only two of its five positions are
filled?
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The NLRB has had only two Members (instead of the
normal five Members) since the end of 2007. Near the end of 2007, there were
still four Members, and they delegated their powers to a group of three.
Everybody knew that only two of those three would be left at the end of the
year.
The NLRB's position has always been that
the surviving two Members are a quorum of the three to whom powers were
delegated. Employers have argued that the whole
thing was a sham. On a more technical level, the argument was that the Board's
delegation could not survive the loss of a quorum on the Board itself. The 7th Circuit held that the NLRB had the statutory
authority to hear cases and issue orders regarding unfair labor practice
charges.
Case below: New
Process Steel v. National Labor Relations Board (7th Cir 05/01/2009)
Question presented:
Does the National Labor Relations Board 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"?
Certiorari Documents:
Briefs on the merits:
Counsel:
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