Supreme Court Disagrees with Kagan — Voids 600 NLRB Decisions

The only Elena Kagan brief I haven’t covered was filed in the case of New Process Steel v. National Labor Relations Board. (She also filed one in National Labor Relations Board v. Laurel  Baye Healthcare of Lake Lanier, but this case involved the same issue decided in the New Process Steel case.) New Process Steel concerned the issue of whether the NLRB could properly decide cases with only a two-member board. Representing the NLRB’s position, Kagan argued as Solicitor General that the NLRB could act with only a two-member board. The Supreme Court has now decided that it couldn’t.

The NLRB is ordinarily composed of five members. However, after three members’ terms expired and Congress failed to fill the vacant positions, the remaining two-member board continued to decide cases — almost 600 of them. When the NLRB was down to three members and realized that Congress wasn’t going to immediately fill the vacancies, the three-member board delegated to the two members who would remain the authority to continue to decide cases, so the NLRB wouldn’t be effectively shut down.

In deciding that the two-member board didn’t have the authority to continue deciding cases, the Supreme Court  (split 5-4) focused on language in the National Labor Relations Act, which said that “three members of the Board shall, at all times, constitute a quorum.” Although three members had delegated to the remaining two members the authority to continue doing the job of the NLRB, once the board was down to two, it no longer had the required quorum.

While the Court’s ruling is significant to the parties involved in the 600 NLRB decisions, most observers don’t believe that any major decisions were made during the two-member reign, since one member was a Democrat and the other a Republican.

For other posts on Kagan, click here, here, here, here, here, here, here, here, here, here, here, and here.