The Supreme Court just issued its decision in New Process Steel. They held that the Board lacked authority to rule with only 2-members. Decision is here. We will comment soon. UPDATE: The decision is a clean-kill. Justice Stevens says in his opinion (joined by Chief Justice Roberts and justices Alito, Scalia and Thomas) that:
In sum, we find that the Board quorum requirement and the three-member delegation clause should not be read as easily surmounted technical obstacles of little to no import. Our reading of the statute gives effect to those provisions without rendering any other provision of the statute superfluous: The delegation clause still operates to allow the Board to act in panels of three, and the group quorum provision still operates to allow any panel to issue a decision by only two members if one member is disqualified. Our construction is also consistent with the Board’s longstanding practice with respect to delegee groups. We thus hold that the delegation clause requires that a delegee group maintain a membership of three in order to exercise the delegated authority of the Board.
You can read the full majority opinion here. The dissent opinion can be found here. What does this mean? For starters, the nearly 600 cases decided by members Liebman and Schaumber are vacated by the majority opinion and must be re-decided by a panel of at least 3 members. Effectively it’s probably one of those “be careful what you wish for” scenarios. None of these cases were very controversial (after all, a controversial case would have ended up in a 1-1 tie). So it is likely that the Board will just rubber stamp the prior decisions. However, there is a possibility that some of these “non-controversial” decisions – say, the ones where the employer prevailed – could get a closer look by a new 3-member panel (that will now, by definition, have a democratic majority). I will go out on a limb and predict that the original decision in the New Process Steel case will be upheld…
