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New Process Steel v. National Labor Relations Board  (08-1457) 
NLRB cannot act when only two of its five positions are filled (5-4).
Decided June 17, 2010 
[Opinion full text

The NLRB had only two Members (instead of the normal five Members) from the end of 2007 until March 2010. Near the end of 2007, there were still four Members, and they delegated their powers to a group of three. On December 31, one of the group Member's term expired, and the remaining two Members issued nearly 600 Board decisions over the next 27 months.

The US Supreme Court (5-4) held that NLRA Section 3(b) requires that a delegee group maintain a membership of three in order to exercise the delegated authority of the NLRB. The Court said, "reading the delegation clause [the first sentence of §3(b)] to require that the Board’s delegated power be vested continuously in a group of three members is the only way to harmonize and give meaningful effect to all of the provisions in §3(b)."

Case below: New Process Steel v. National Labor Relations Board (7th Cir 05/01/2009)
Official docket sheet 
Certiorari granted November 2, 2009.
Oral argument:  March 23, 2010. [Transcript]

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: 


  • For Petitioner: Sheldon Edward Richie; Richie & Gueringer, P.C.; 100 Congress Avenue, Suite 1750; Austin, TX  78701; (512) 236-9220.
  • For Respondent: Elena Kagan; Solicitor General; United States Department of Justice; 950 Pennsylvania Avenue, N.W.; Washington, DC  20530-0001; (202) 514-2217.

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