WASHINGTON — The Supreme Court on Thursday said the National Labor Relations Board couldn't make decisions with fewer than three members, calling into question hundreds of cases decided over the past several years.
In a 5-4 decision, which comes as Republicans and Democrats in the Senate haggle over President Barack Obama's nominations to the NLRB, the court ruled the board needs at least a three-member quorum to fulfill its responsibilities.
"If Congress had intended to authorize two members alone to act for the board on an ongoing basis, it could have said so in straightforward language," Justice John Paul Stevens wrote for the majority.
Stevens added that the requirement for three members to act "should not be read as easily surmounted technical obstacles of little to no import."
The National Labor Relations Board is an independent federal agency that governs relations between unions and employers. It is comprised of five members, each confirmed by the Senate.
Between January 2008 and March 2010, however, the labor board had only two members deciding almost 600 cases. The fate of these individual cases is now uncertain.
"We are of course disappointed with the outcome, but we will now do our best to rectify the situation," board Chairman Wilma B. Liman said in a statement.
In September 2008, the board reviewed a dispute over a collective bargaining agreement between New Process Steel, an Indiana-based plant, and the union representing its employees. The board ruled in the union's favor.
At the time, the board had multiple vacancies because of the expiration of two recess appointments near the end of 2007. Thereafter, the board delegated its full powers to a three-member group, which it knew would soon be reduced to two because of another expiring appointment. The board thought the relevant statute would allow this downsized board to retain its full powers.
The court interpreted the statute, however, to say that the board must have three participating members "at all times" in order to act. Stevens wrote that the board's alternative interpretation — that three members need only be present at "the precise time the Board delegates its powers" — amounts to "permanent circumvention" of the quorum requirement.
Justice Anthony Kennedy, who was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonya Sotomayor in the dissent, wrote: "There is nothing inconsistent about Congress preferring board decision to be made by three members and advancing that preference through statutory requirements, while at the same time providing exceptions for suboptimal circumstances."
With the recent appointment of two new NLRB members who are awaiting Senate confirmation, a fully staffed board likely will have to revisit many cases it considered during the 27-month span of two-member authority.
The board, for instance, in December 2009 ruled against Trump Marina Casino, which prohibited its employees from speaking to the media without prior permission. The board declared this an unfair labor act.
And just two months earlier, the board ruled that Starbucks could not lawfully forbid employees from wearing more than one pro-union button.
The chairman of the Senate Judiciary Committee, Sen. Patrick Leahy, D-Vt., called the long-standing board vacancies unfortunate and expressed hope that, with the confirmation of Obama's nominees, "the board can again resolve these important workplace disputes."
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