The National Labor Relations Board is a five-member independent agency that adjudicates unfair labor practice and representation cases under the NLRA. Section 3(b) of the Act, 29 U.S.C. § 153(b), allows the Board to delegate its powers to "any group of three or more members," states that "two members shall constitute a quorum of any such group," and provides that "three members of the Board shall, at all times, constitute a quorum of the Board." In late 2007, anticipating the expiration of member terms and an impending loss of a three-member Board quorum, the then four-member NLRB delegated all of its powers to a three-member group. Shortly thereafter, on December 31, 2007, the Board's membership fell to two. The two remaining members (as the only sitting members of both the Board and the previously designated three-member group) continued to adjudicate cases for more than two years, issuing approximately 600 decisions. One such decision found New Process Steel, L.P. committed unfair labor practices and ordered remedial relief. New Process Steel petitioned for review, challenging the validity of the decision on the ground that the NLRB lacked authority to act with only two members. The Seventh Circuit enforced the Board's order, deepening a circuit split on the two-member question. The Supreme Court granted certiorari.
Whether, under NLRA § 3(b), the National Labor Relations Board may lawfully exercise the Board's powers when only two members remain, on the theory that the two constitute a quorum of a previously designated three‑member delegee group after the Board's overall membership has fallen below three.
Under NLRA § 3(b), 29 U.S.C. § 153(b), the Board may delegate "any or all" of its powers to a group of three members, and two members may constitute a quorum of that three-member group. However, "three members of the Board shall, at all times, constitute a quorum of the Board," and the delegee group must maintain its membership at three for the two-member quorum provision to apply. The Board cannot exercise its adjudicatory authority with only two sitting members, and Chevron deference does not permit a contrary interpretation where the statute unambiguously requires at least three members.
No. The NLRB may not exercise its authority with only two members. Section 3(b) requires that the Board maintain at least three sitting members and that any delegee group consist of three members; the two-member quorum provision applies only when a valid three-member group exists. The Seventh Circuit's judgment was reversed and the case remanded.
The Court, in an opinion by Justice Stevens, conducted a textual and structural analysis of § 3(b). First, the clause stating that "three members of the Board shall, at all times, constitute a quorum of the Board" establishes a continuous requirement that at least three members be available for the Board to exercise its powers. Second, while the statute allows the Board to delegate its powers to a group of three and provides that two members constitute a quorum of any such group, the Court read these provisions together to require that the delegee group actually have three members in being for the two-member quorum to operate. The phrase "group of three" is not a one-time designation that can perpetually sustain action by only two members; it describes the ongoing composition of the acting body. The Court rejected the NLRB's argument that its December 2007 delegation to a three-member group allowed the two remaining members to act indefinitely as a quorum even after Board membership fell to two. Such an interpretation rendered the Board quorum clause ("at all times") largely meaningless and conflicted with the structural design that prevents concentration of adjudicatory authority in too few hands. The vacancy provisos—stating that vacancies shall not impair the rights of remaining members—allow the Board and delegee groups to continue operating despite unfilled seats, but only so long as the applicable quorum requirements are met. They do not authorize the Board to act when its membership dips below three or when the delegee group no longer consists of three members. Addressing deference, the Court concluded at Chevron step one that the statute unambiguously requires a minimum of three members for Board action and for any valid delegee group, and therefore no deference to the agency's contrary view was appropriate. The Court acknowledged the practical burdens—hundreds of decisions would be called into question and a backlog would grow—but emphasized that such policy considerations cannot override Congress's chosen statutory scheme. Justice Kennedy, joined by three Justices, dissented, viewing the statute as ambiguous and the Board's interpretation as reasonable in light of the vacancy and quorum provisions and the need for agency continuity.
New Process Steel is a leading case on statutory quorum and delegation limits for multi-member agencies. It exemplifies Chevron step-one textualism: when Congress has spoken clearly, courts will not defer to agency interpretations that expand their own authority. For labor law, the decision invalidated or required reconsideration of roughly 600 two-member NLRB decisions and underscored the institutional fragility of the Board during political stalemates. For administrative law more broadly, it teaches that structural provisions—quorum rules, delegation mechanics, and vacancy clauses—are not mere formalities but enforceable constraints that preserve deliberation, legitimacy, and accountability.
New Process Steel reaffirms that statutory structure is substantive, not cosmetic. Congress required the NLRB to act with a minimum number of members and created a specific delegation regime; the Supreme Court enforced those requirements as written, notwithstanding the agency's practical need to keep adjudicating. The opinion exemplifies a Chevron step-one resolution based on close reading of interlocking statutory clauses.