New Process Steel, L. P. v. National Labor Relations Board

(Slip Opinion) OCTOBER TERM, 2009 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

NEW PROCESS STEEL, L. P. v. NATIONAL LABOR

RELATIONS BOARD

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT

No. 08–1457. Argued March 23, 2010—Decided June 17, 2010
The Taft-Hartley Act increased the size of the National Labor Relations
Board (Board) from three members to five, see 29 U. S. C. §153(a),
and amended §3(b) of the National Labor Relations Act to increase
the Board’s quorum requirement from two members to three and to
allow the Board to delegate its authority to groups of at least three
members, see §153(b). In December 2007, the Board—finding itself
with only four members and expecting two more vacancies—
delegated, inter alia, its powers to a group of three members. On De
cember 31, one group member’s appointment expired, but the others
proceeded to issue Board decisions for the next 27 months as a two
member quorum of a three-member group. Two of those decisions
sustained unfair labor practice complaints against petitioner, which
sought review, challenging the two-member Board’s authority to is
sue orders. The Seventh Circuit ruled for the Government, conclud
ing that the two members constituted a valid quorum of a three
member group to which the Board had legitimately delegated its
powers.
Held: Section 3(b) requires that a delegee group maintain a member
ship of three in order to exercise the delegated authority of the Board.
Pp. 4–14.
(a) The first sentence of §3(b), the so-called delegation clause, au
thorizes the Board to delegate its powers only to a “group of three or
more members.” This clause is best read to require that the delegee
group maintain a membership of three in order for the delegation to
remain valid. First, that is the only way to harmonize and give
meaningful effect to all of §3(b)’s provisions: (1) the delegation clause;
(2) the vacancy clause, which provides that “[a] vacancy in the Board
2 NEW PROCESS STEEL, L. P. v. NLRB

Syllabus

shall not impair the right of the remaining members to exercise all of
the powers of the Board”; (3) the Board quorum requirement, which
mandates that “three members of the Board shall, at all times, con
stitute a quorum of the Board”; and (4) the group quorum provision,
which provides that “two members shall constitute a quorum” of any
delegee group. This reading is consonant with the Board quorum re
quirement of three participating members “at all times,” and it gives
material effect to the delegation clause’s three-member rule. It also
permits the vacancy clause to operate to provide that vacancies do
not impair the Board’s ability to take action, so long as the quorum is
satisfied. And it does not render inoperative the group quorum pro
vision, which continues to authorize a properly constituted three
member delegee group to issue a decision with only two members
participating when one is disqualified from a case. The Govern
ment’s contrary reading allows two members to act as the Board ad
infinitum, dramatically undercutting the Board quorum require
ment’s significance by allowing its permanent circumvention. It also
diminishes the delegation clause’s three-member requirement by
permitting a de facto two-member delegation. By allowing the Board
to include a third member in the group for only one minute before her
term expires, this approach also gives no meaningful effect to the
command implicit in both the delegation clause and the Board quo
rum requirement that the Board’s full power be vested in no fewer
than three members. Second, had Congress intended to authorize
two members to act on an ongoing basis, it could have used straight
forward language. The Court’s interpretation is consistent with the
Board’s longstanding practice of reconstituting a delegee group when
one group member’s term expired. Pp. 4–9.
(b) The Government’s several arguments against the Court’s inter
pretation—that the group quorum requirement and vacancy clause
together permit two members of a three-member group to constitute
a quorum even when there is no third member; that the vacancy
clause establishes that a vacancy in the group has no effect; and that
reading the statute to authorize the Board to act with only two mem
bers advances the congressional objective of Board efficiency—are
unconvincing. Pp. 9–14.
564 F. 3d 840, reversed and remanded.

STEVENS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. KENNEDY, J., filed a
dissenting opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ.,
joined.
 Cite as: 560 U. S. ____ (2010) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 08–1457
_________________

NEW PROCESS STEEL, L. P., PETITIONER v.

NATIONAL LABOR RELATIONS BOARD

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[June 17, 2010]

JUSTICE STEVENS delivered the opinion of the Court.
The Taft-Hartley Act, enacted in 1947, increased the
size of the National Labor Relations Board (Board) from
three members to five. See 29 U. S. C. §153(a). Concur
rent with that change, the Taft-Hartley Act amended §3(b)
of the National Labor Relations Act (NLRA) to increase
the quorum requirement for the Board from two members
to three, and to allow the Board to delegate its authority to
groups of at least three members. See §153(b). The ques
tion in this case is whether, following a delegation of the
Board’s powers to a three-member group, two members
may continue to exercise that delegated authority once the
group’s (and the Board’s) membership falls to two. We
hold that two remaining Board members cannot exercise
such authority.
I
As 2007 came to a close, the Board found itself with four
members and one vacancy. It anticipated two more vacan
cies at the end of the year, when the recess appointments
of Members Kirsanow and Walsh were set to expire, which
would leave the Board with only two members—too few to
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Opinion of the Court

meet the Board’s quorum requirement, §153(b). The four
sitting members decided to take action in an effort to
preserve the Board’s authority to function. On December
20, 2007, the Board made two delegations of its authority,
effective as of midnight December 28, 2007. First, the
Board delegated to the general counsel continuing author
ity to initiate and conduct litigation that would normally
require case-by-case approval of the Board. See Minute of
Board Action (Dec. 20, 2007), App. to Brief for Petitioner
4a–5a (hereinafter Board Minutes). Second, the Board
delegated “to Members Liebman, Schaumber and Kir
sanow, as a three-member group, all of the Board’s pow
ers, in anticipation of the adjournment of the 1st Session
of the 110th Congress.” Id., at 5a. The Board expressed
the opinion that its action would permit the remaining two
members to exercise the powers of the Board “after [the]
departure of Members Kirsanow and Walsh, because the
remaining Members will constitute a quorum of the three
member group.” Ibid.
The Board’s minutes explain that it relied on “the statu
tory language” of §3(b), as well as an opinion issued by the
Office of Legal Counsel (OLC), for the proposition that the
Board may use this delegation procedure to “issue deci
sions during periods when three or more of the five seats
on the Board are vacant.” Id., at 6a. The OLC had con
cluded in 2003 that “if the Board delegated all of its pow
ers to a group of three members, that group could continue
to issue decisions and orders as long as a quorum of two
members remained.” Dept. of Justice, OLC, Quorum
Requirements, App. to Brief for Respondent 3a. In seek
ing the OLC’s advice, the Board agreed to accept the
OLC’s answer regarding its ability to operate with only
two members, id., at 1a, n. 1, and the Board in its minutes
therefore “acknowledged that it is bound” by the OLC
opinion. Board Minutes 6a. The Board noted, however,
that it was not bound to make this delegation; rather, it
 Cite as: 560 U. S. ____ (2010) 3

Opinion of the Court

had “decided to exercise its discretion” to do so. Ibid.
On December 28, 2007, the Board’s delegation to the
three-member group of Members Liebman, Schaumber,
and Kirsanow became effective. On December 31, 2007,
Member Kirsanow’s recess appointment expired. Thus,
starting on January 1, 2008, Members Liebman and
Schaumber became the only members of the Board. They
proceeded to issue decisions for the Board as a two
member quorum of a three-member group. The delegation
automatically terminated on March 27, 2010, when the
President made two recess appointments to the Board,
because the terms of the delegation specified that it would
be revoked when the Board’s membership returned to at
least three members, id., at 7a.
During the 27-month period in which the Board had
only two members, it decided almost 600 cases. See Letter
from Elena Kagan, Solicitor General, to William K. Suter,
Clerk of Court (Apr. 26, 2010). One of those cases involved
petitioner New Process Steel. In September 2008, the two
member Board issued decisions sustaining two unfair
labor practice complaints against petitioner. See New
Process Steel, LP, 353 N. L. R. B. No. 25 (2008); New Proc
ess Steel, LP, 353 N. L. R. B. No. 13 (2008). Petitioner
sought review of both orders in the Court of Appeals for
the Seventh Circuit, and challenged the authority of the
two-member Board to issue the orders.
The court ruled in favor of the Government. After a
review of the text and legislative history of §3(b) and the
sequence of events surrounding the delegation of authority
in December 2007, the court concluded that the then
sitting two members constituted a valid quorum of a
three-member group to which the Board had legitimately
delegated all its powers. 564 F. 3d 840, 845–847 (CA7
2009). On the same day that the Seventh Circuit issued
its decision in this case, the Court of Appeals for the Dis
trict of Columbia announced a decision coming to the
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Opinion of the Court

opposite conclusion. Laurel Baye Healthcare of Lake
Lanier, Inc. v. NLRB, 564 F. 3d 469 (2009). We granted
certiorari to resolve the conflict.1 558 U. S. ___ (2009).
II
The Board’s quorum requirements and delegation pro
cedure are set forth in §3(b) of the NLRA, 49 Stat. 451, as
amended by 61 Stat. 139, which provides:
“The Board is authorized to delegate to any group of
three or more members any or all of the powers which
it may itself exercise. . . . A vacancy in the Board
shall not impair the right of the remaining members
to exercise all of the powers of the Board, and three
members of the Board shall, at all times, constitute a
quorum of the Board, except that two members shall
constitute a quorum of any group designated pursuant
to the first sentence hereof.” 29 U. S. C. §153(b).
It is undisputed that the first sentence of this provision
authorized the Board to delegate its powers to the three
member group effective on December 28, 2007, and the
last sentence authorized two members of that group to act
as a quorum of the group during the next three days if, for
example, the third member had to recuse himself from a
particular matter. The question we face is whether those
two members could continue to act for the Board as a
quorum of the delegee group after December 31, 2007,
when the Board’s membership fell to two and the desig
nated three-member group of “Members Liebman,
Schaumber, and Kirsanow” ceased to exist due to the
——————
1 Several other Courts of Appeals reached the same conclusion as the

Seventh Circuit, although not always following the same reasoning.
See Northeastern Land Servs., Ltd. v. NLRB, 560 F. 3d 36, 41 (CA1
2009); Snell Island SNF LLC v. NLRB, 568 F. 3d 410, 424 (CA2 2009);
Narricot Industries, L. P. v. NLRB, 587 F. 3d 654, 660 (CA4 2009);
Teamsters Local Union No. 523 v. NLRB, 590 F. 3d 849, 852 (CA10
2009).
 Cite as: 560 U. S. ____ (2010) 5

Opinion of the Court

expiration of Member Kirsanow’s term. Construing §3(b)
as a whole and in light of the Board’s longstanding prac
tice, we are persuaded that they could not.
The first sentence of §3(b), which we will call the delega
tion clause, provides that the Board may delegate its
powers only to a “group of three or more members.” 61
Stat. 139. There are two different ways to interpret that
language. One interpretation, put forward by the Gov
ernment, would read the clause to require only that a
delegee group contain three members at the precise time
the Board delegates its powers, and to have no continuing
relevance after the moment of the initial delegation.
Under that reading, two members alone may exercise the
full power of the Board so long as they were part of a
delegee group that, at the time of its creation, included
three members. The other interpretation, by contrast,
would read the clause as requiring that the delegee group
maintain a membership of three in order for the delega
tion to remain valid. Three main reasons support the
latter reading.
First, and most fundamentally, reading the delegation
clause 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). See Duncan v. Walker, 533 U. S.
167, 174 (2001) (declining to adopt a “construction of the
statute, [that] would render [a term] insignificant”); Mar
ket Co. v. Hoffman, 101 U. S. 112, 115–116 (1879) (“[A]
statute ought, upon the whole, to be so construed that, if it
can be prevented, no clause, sentence, or word shall be . . .
insignificant” (internal quotation marks omitted)). Those
provisions are: (1) the delegation clause; (2) the vacancy
clause, which provides that “[a] vacancy in the Board shall
not impair the right of the remaining members to exercise
all of the powers of the Board”; (3) the Board quorum
requirement, which mandates that “three members of the
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Opinion of the Court

Board shall, at all times, constitute a quorum of the
Board”; and (4) the group quorum provision, which pro
vides that “two members shall constitute a quorum” of any
delegee group. See §153(b).
Interpreting the statute to require the Board’s powers to
be vested at all times in a group of at least three members
is consonant with the Board quorum requirement, which
requires three participating members “at all times” for the
Board to act. The interpretation likewise gives material
effect to the three-member requirement in the delegation
clause. The vacancy clause still operates to provide that
vacancies do not impair the ability of the Board to take
action, so long as the quorum is satisfied. And the inter
pretation does not render inoperative the group quorum
provision, which still operates to authorize a three
member delegee group to issue a decision with only two
members participating, so long as the delegee group was
properly constituted. Reading §3(b) in this manner, the
statute’s various pieces hang together—a critical clue that
this reading is a sound one.
The contrary reading, on the other hand, allows two
members to act as the Board ad infinitum, which dramati
cally undercuts the significance of the Board quorum
requirement by allowing its permanent circumvention.
That reading also makes the three-member requirement
in the delegation clause of vanishing significance, because
it allows a de facto delegation to a two-member group, as
happened in this case. Under the Government’s approach,
it would satisfy the statute for the Board to include a third
member in the group for only one minute before her term
expires; the approach gives no meaningful effect to the
command implicit in both the delegation clause and in the
Board quorum requirement that the Board’s full power be
vested in no fewer than three members. Hence, while the
Government’s reading of the delegation clause is textually
permissible in a narrow sense, it is structurally implausi
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Opinion of the Court

ble, as it would render two of §3(b)’s provisions function
ally void.
Second, and relatedly, 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. Congress instead imposed the requirement that
the Board delegate authority to no fewer than three mem
bers, and that it have three participating members to
constitute a quorum. Those provisions are at best an
unlikely way of conveying congressional approval of a two
member Board. Indeed, had Congress wanted to provide
for two members alone to act as the Board, it could have
maintained the NLRA’s original two-member Board quo
rum provision, see 29 U. S. C. §153(b) (1946 ed.), or pro
vided for a delegation of the Board’s authority to groups of
two. The Rube Goldberg-style delegation mechanism
employed by the Board in 2007—delegating to a group of
three, allowing a term to expire, and then continuing with
a two-member quorum of a phantom delegee group—is
surely a bizarre way for the Board to achieve the authority
to decide cases with only two members. To conclude that
Congress intended to authorize such a procedure to con
travene the three-member Board quorum, we would need
some evidence of that intent.
The Government has not adduced any convincing evi
dence on this front, and to the contrary, our interpretation
is consistent with the longstanding practice of the Board.
This is the third factor driving our decision. Although the
Board has throughout its history allowed two members of
a three-member group to issue decisions when one mem
ber of a group was disqualified from a case, see Brief for
Respondent 20; Board Minutes 6a, the Board has not
(until recently) allowed two members to act as a quorum of
a defunct three-member group.2 Instead, the Board con
——————
2 When one member of a group is disqualified, only two members
8 NEW PROCESS STEEL, L. P. v. NLRB

Opinion of the Court

cedes that its practice was to reconstitute a delegee group
when one group member’s term expired. Brief for Respon
dent 39, n. 27.3 That our interpretation of the delegation
provision is consistent with the Board’s longstanding
practice is persuasive evidence that it is the correct one,
notwithstanding the Board’s more recent view. See Bowen
v. Georgetown Univ. Hospital, 488 U. S. 204, 214 (1988).
In sum, a straightforward understanding of the text,
which requires that no fewer than three members be
vested with the Board’s full authority, coupled with the
Board’s longstanding practice, points us toward an inter
pretation of the delegation clause that requires a delegee
group to maintain a membership of three.
III
Against these points, the Government makes several
arguments that we find unconvincing. It first argues that
§3(b) authorizes the Board’s action by its plain terms,
notwithstanding the somewhat fictional nature of the
delegation to a three-member group with the expectation
that within days it would become a two-member group. In
——————
actually participate in the decision. That circumstance thus also
presents the problem of the possible inferiority of two-member deci
sionmaking. That the Board found it necessary to reconstitute groups
only when there was a vacancy, and not when there was a disqualifica
tion, suggests that its practice was driven by more than its belief in
the “superiority of three-member groups,” post, at 10 (KENNEDY, J.,
dissenting).
3 It also has not been the Board’s practice to issue decisions when the

Board’s membership has fallen to two. For about a 2-month period in
1993–1994, and a 1-month period in 2001–2002, the Board had only
two members and did not issue decisions. Brief for Respondent 5, n. 4.
In 2005, the Board did delegate its authority to a three-member group,
of which two members issued a few orders as a quorum during a 3-day
period in which the Board’s (and the group’s) membership fell below
three. Ibid. But the two-member Board at issue in this case, extending
over two years, is unprecedented in the history of the post-Taft-Hartley
Board.
 Cite as: 560 U. S. ____ (2010) 9

Opinion of the Court

particular, the Government contends the group quorum
requirement and the vacancy clause together make clear
that when the Board has delegated its power to a three
member group, “any two members of that group constitute
a quorum that may continue to exercise the delegated
powers, regardless whether the third group member . . .
continues to sit on the Board” and regardless “whether a
quorum remains in the full Board.” Brief for Respondent
17; see also id., at 20–23.
Although the group quorum provision clearly authorizes
two members to act as a quorum of a “group designated
pursuant to the first sentence”—i.e., a group of at least
three members—it does not, by its plain terms, authorize
two members to constitute a valid delegee group. A quo
rum is the number of members of a larger body that must
participate for the valid transaction of business. See
Black’s Law Dictionary 1370 (9th ed. 2009) (defining
“quorum” as the “minimum number of members . . . who
must be present for a deliberative assembly to legally
transact business”); 13 Oxford English Dictionary 51 (2d
ed. 1989) (“A fixed number of members of any body . . .
whose presence is necessary for the proper or valid trans
action of business”); Webster’s New International Diction
ary 2046 (2d ed. 1954) (“Such a number of the officers or
members of any body as is, when duly assembled, legally
competent to transact business”). But the fact that there
are sufficient members participating to constitute a quo
rum does not necessarily establish that the larger body is
properly constituted or can validly exercise authority.4 In
——————
4 Nor does failure to meet a quorum requirement necessarily establish

that an entity’s power is suspended so that it can be exercised by no
delegee. The requisite membership of an organization, and the number
of members who must participate for it to take an action, are two
separate (albeit related) characteristics. Thus, although we reach the
same result, we do not adopt the District of Columbia Circuit’s equation
of a quorum requirement with a membership requirement that must be
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other words, that only two members must participate to
transact business in the name of the group, does not estab
lish that the group itself can exercise the Board’s author
ity when the group’s membership falls below three.
The Government nonetheless contends that quorum
rules “ordinarily” define the number of members that is
both necessary and sufficient for an entity to take an
action. Brief for Respondent 20. Therefore, because of the
quorum provision, if “at least two members of a delegee
group actually participate in a decision . . . that should be
the end of the matter,” regardless of vacancies in the
group or on the Board. Ibid. But even if quorum provi
sions ordinarily provide the rule for dealing with vacan
cies—i.e., even if they ordinarily make irrelevant any
vacancies in the remainder of the larger body—the quo
rum provisions in §3(b) do no such thing. Rather, there is
a separate clause addressing vacancies. The vacancy
clause, recall, provides that “[a] vacancy in the Board shall
not impair the right of the remaining members to exercise
all of the powers of the Board.” §153(b) (2006 ed.). We
thus understand the quorum provisions merely to define
the number of members who must participate in a deci

——————
satisfied or else the power of any entity to which the Board has dele
gated authority is suspended. See Laurel Baye Healthcare of Lake
Lanier, Inc. v. NLRB, 564 F. 3d 469, 475 (2009) (“[T]he Board quorum
provision establishes that the power of the Board to act exists [only]
when the Board consists of three members. The delegee group’s dele
gated power to act . . . ceases when the Board’s membership dips below
the Board quorum of three members” (citation omitted)). The Board
may not, of course, itself take any action absent sufficient membership
to muster a quorum (three), and in that sense a quorum requirement
establishes a minimum membership level. Our conclusion that the
delegee group ceases to exist once there are no longer three Board
members to constitute the group does not cast doubt on the prior
delegations of authority to nongroup members, such as the regional
directors or the general counsel. The latter implicates a separate
question that our decision does not address.
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sion, and look to the vacancy clause to determine whether
vacancies in excess of that number have any effect on an
entity’s authority to act.
The Government argues that the vacancy clause estab
lishes that a vacancy in the group has no effect. But the
clause speaks to the effect of a vacancy in the Board on the
authority to exercise the powers of the Board; it does not
provide a delegee group authority to act when there is a
vacancy in the group. It is true that any vacancy in the
group is necessarily also a vacancy in the Board (although
the converse is not true), and that a group exercises the
(delegated) “powers of the Board.” But §3(b) explicitly
distinguishes between a group and the Board throughout,
and in light of that distinction we do not think “Board”
should be read to include “group” when doing so would
negate for all practical purposes the command that
a delegation must be made to a group of at least three
members.
Some courts have nonetheless interpreted the quorum
and vacancy provisions of §3(b) by analogizing to an appel
late panel, which may decide a case even though only two
of the three initially assigned judges remain on the panel.
See Photo-Sonics, Inc. v. NLRB, 678 F. 2d 121, 122–123
(CA9 1982). The governing statute provides that a case
may be decided “by separate panels, each consisting of
three judges,” 28 U. S. C. §46(b), but that a “majority of
the number of judges authorized to constitute a court or
panel thereof . . . shall constitute a quorum,” §46(d). We
have interpreted that statute to “requir[e] the inclusion of
at least three judges in the first instance,” but to allow a
two-judge “quorum to proceed to judgment when one
member of the panel dies or is disqualified.” Nguyen v.
United States, 539 U. S. 69, 82 (2003). But §46, which
addresses the assignment of particular cases to panels, is
a world apart from this statute, which authorizes the
standing delegation of all the Board’s powers to a small
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group.5 Given the difference between a panel constituted
to decide particular cases and the creation of a standing
panel plenipotentiary, which will decide many cases aris
ing long after the third member departs, there is no basis
for reading the statutes similarly. Moreover, our reading
of the court of appeals quorum provision was informed by
the longstanding practice of allowing two judges from the
initial panel to proceed to judgment in the case of a va
cancy, see ibid., and as we have already explained, the
Board’s practice has been precisely the opposite.
Finally, we are not persuaded by the Government’s
argument that we should read the statute to authorize the
Board to act with only two members in order to advance
the congressional objective of Board efficiency. Brief for
Respondent 26. In the Government’s view, Congress’
establishment of the two-member quorum for a delegee
group reflected its comfort with pre-Taft-Hartley practice,
when the then-three-member Board regularly issued
decisions with only two members. Id., at 24. But it is
unsurprising that two members regularly issued Board
decisions prior to Taft-Hartley, because the statute then
provided for a Board quorum of two. See 29 U. S. C.
§153(b) (1946 ed.). Congress changed that requirement to
a three-member quorum for the Board. As we noted
above, if Congress had wanted to allow the Board to con
tinue to operate with only two members, it could have kept
the Board quorum requirement at two.6
——————
5 In any event, if the analogy to the appellate courts were correct,

then one might have to examine each Board decision individually.
Petitioner’s case was not initially assigned to a three-member panel
and thereafter decided by two members after one member had retired.
Instead, by the time petitioner’s case came before the Board, Member
Kirsanow had long departed. In practical terms, petitioner’s case was
both assigned to and decided by a two-member delegee group.
6 We have no doubt that Congress intended “to preserve the ability of

two members of the Board to exercise the Board’s full powers, in limited
circumstances,” post, at 12, as when a two-member quorum of a prop
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Opinion of the Court

Furthermore, if Congress had intended to allow for a
two-member Board, it is hard to imagine why it would
have limited the Board’s power to delegate its authority by
requiring a delegee group of at least three members. Nor
do we have any reason to surmise that Congress’ overrid
ing objective in amending §3(b) was to keep the Board
operating at all costs; the inclusion of the three-member
quorum and delegation provisions indicate otherwise. Cf.
Robert’s Rules of Order §3, p. 20 (10th ed. 2001) (“The
requirement of a quorum is a protection against totally
unrepresentative action in the name of the body by an
unduly small number of persons”).
IV
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 im
port. Our reading of the statute gives effect to those pro
visions without rendering any other provision of the stat
ute 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 disquali
fied. 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.
We are not insensitive to the Board’s understandable
desire to keep its doors open despite vacancies.7 Nor are
——————
erly constituted delegee group issues a decision for the Board in a
particular case. But we doubt “Congress intended to preserve” the pre-
Taft-Hartley practice of two members acting for the Board when the
third seat was vacant, post, at 11, because it declined to preserve the
pre-Taft-Hartley two-member Board quorum.
7 Former Board members have identified turnover and vacancies as a
14 NEW PROCESS STEEL, L. P. v. NLRB

Opinion of the Court

we unaware of the costs that delay imposes on the liti
gants. If Congress wishes to allow the Board to decide
cases with only two members, it can easily do so. But
until it does, Congress’ decision to require that the Board’s
full power be delegated to no fewer than three members,
and to provide for a Board quorum of three, must be given
practical effect rather than swept aside in the face of
admittedly difficult circumstances. Section 3(b), as it
currently exists, does not authorize the Board to create a
tail that would not only wag the dog, but would continue
to wag after the dog died.
The judgment is reversed, and the case is remanded for
further proceedings consistent with this opinion.

It is so ordered.

——————
significant impediment to the operations of the Board. See Truesdale,
Battling Case Backlogs at the NLRB, 16 Lab. Law. 1, 5 (2000) (“[I]t is
clear that turnover and vacancies have a major impact on Board
productivity”); Higgins, Labor Czars—Commissars—Keeping Women in
the Kitchen—the Purpose and Effects of the Administrative Changes
Made by Taft-Hartley, 47 Cath. U. L. Rev. 941, 953 (1998) (“Taft-
Hartley’s Achilles heel is the appointment process. . . . In the past
twenty years . . . Board member turnover and delays in appointments
and in the confirmation process have kept the Board from reaching its
true potential”).
 Cite as: 560 U. S. ____ (2010) 1

KENNEDY, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 08–1457
_________________

NEW PROCESS STEEL, L. P., PETITIONER v.

NATIONAL LABOR RELATIONS BOARD

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

[June 17, 2010]

JUSTICE KENNEDY, with whom JUSTICE GINSBURG,
JUSTICE BREYER, and JUSTICE SOTOMAYOR join, dissent
ing.
As of the day this case was argued before the Court, the
National Labor Relations Board (Board), constituted as a
five-member board, had operated with but two members
for more than 26 months. That state of affairs, to say the
least, was not ideal. This may be an underlying reason for
the Court’s conclusion. Despite the fact that the statute’s
plain terms permit a two-member quorum of a properly
designated three-member group to issue orders, the Court
holds that the two-member quorum lost all authority to
act once the third member left the Board. Under the
Court’s holding, the Board was unauthorized to resolve
the more than 500 cases it addressed during those 26
months in the course of carrying out its responsibility “to
remove obstructions to the free flow of commerce” through
“the promotion of industrial peace.” NLRB v. Fansteel
Metallurgical Corp., 306 U. S. 240, 257 (1939). This result
is removed even farther from the ideal and from congres
sional intent, as revealed in the statutory design. So it is
hard to make the case that the Court’s interpretation of
the statute either furthers its most evident purposes or
leads to the more sensible outcome.
Indeed, in my view, the objectives of the statute, which
2 NEW PROCESS STEEL, L. P. v. NLRB

KENNEDY, J., dissenting

must be to ensure orderly operations when the Board is
not at full strength as well as efficient operations when it
is, are better respected by a statutory interpretation that
dictates a result opposite to the one reached by the Court.
And in all events, the outcome of the case is but a check on
the accuracy of the textual analysis; and here the text of
the statute, which must control, does not support the
holding of the Court. These reasons, and those to be
further discussed, inform this respectful dissent.
I
The Board, by statute, consists of five members. 29
U. S. C. §153(a). Section 153(b) provides a mechanism in
which the Board can delegate all of its powers to a three
member group. As relevant here, the statute consists of
three parts. First, a delegation clause:
“The Board is authorized to delegate to any group of
three or more members any or all of the powers which
it may itself exercise.”
Then, a vacancy clause:
“A vacancy in the Board shall not impair the right of
the remaining members to exercise all of the powers of
the Board . . . .”
And finally, immediately following the vacancy clause, are
the Board and group quorum provisions:
“[A]nd three members of the Board shall, at all times,
constitute a quorum of the Board, except that two
members shall constitute a quorum of any group des
ignated pursuant to the first sentence hereof.”
As the Court acknowledges, ante, at 4, the three
member group of Members Liebman, Schaumber, and
Kirsanow were a “group designated pursuant to the first
sentence” of §153(b). As such, a two-member quorum of
that group had statutory authorization to issue orders;
 Cite as: 560 U. S. ____ (2010) 3

KENNEDY, J., dissenting

and that is precisely what Members Liebman and
Schaumber did. Because the group was properly desig
nated under §153(b) and a two-member quorum of the
group was authorized to act under the statute’s plain
terms, its actions were lawful. See Connecticut Nat. Bank
v. Germain, 503 U. S. 249, 253–254 (1992) (“[I]n interpret
ing a statute a court should always turn first to one, car
dinal canon before all others. . . . [C]ourts must presume
that a legislature says in a statute what it means and
means in a statute what it says”).
Nothing in the statute suggests that a delegation to a
three-member group expires when one member’s seat
becomes vacant, as the Court holds today. In other con
texts, it is settled law that a vacancy in a delegee group
does not void the initial delegation. See Nguyen v. United
States, 539 U. S. 69, 82 (2003) (concerning vacancies in
three-member panels of the courts of appeals). Any doubt
on that point should be resolved by this specific statutory
instruction: “A vacancy in the Board shall not impair the
right of the remaining members to exercise all of the
powers of the Board.” Members Liebman and Schaumber
were exercising the powers of the Board as its remaining
members; yet the Court today holds that the vacancy
impaired their right to exercise those powers in hundreds
of cases. That conclusion is contrary to the statutory
mandate.
By its holding, the Court rejects a straightforward read
ing that it acknowledges is “textually permissible.” Ante,
at 6. It does so because, in its view, it is “structurally
implausible.” Ante, at 6−7. But the only textually permis
sible reading of §153(b) authorizes a two-member quorum
of a delegee group to issue orders, as was done here; and
in any event there is no structural implausibility in read
ing the statute according to its plain terms.
4 NEW PROCESS STEEL, L. P. v. NLRB

KENNEDY, J., dissenting

II
The Court reads the statute to require a delegee group
to maintain three members. Unable to find this require
ment in the statute’s text, the Court gives three reasons
for its interpretation. Those reasons do not withstand
scrutiny.
A
The first reason the Court gives for its interpretation is
that reading the statute to require a delegee group to
maintain three members “is the only way to harmonize
and give meaningful effect to all of the provisions in”
§153(b). Ante, at 5. This is not so. But it should be fur
ther noted that the argument advanced by the Court is not
that the Government’s interpretation of the statute ren
ders any provision superfluous or without a role to play in
the statutory scheme. Instead, the Court surmises that
certain provisions would not have “meaningful,” “mate
rial,” or “practical” effect, ante, at 5, 6, 14. But that is just
to say that the Court has determined, in its own judgment,
that some provisions should have a greater role than
provided by the text of the statute.
The Government’s reading of the statute does not render
any clause meaningless. The full Board must have three
or more members in order to conduct any business, includ
ing delegating its authority to a three-member group, as
required under the Board quorum provision. This provi
sion applies “at all times” to the Board acting as a whole.
Two members of the Board could not conduct any business
unless they were previously designated by the full Board
as members of a delegee group with such authority. Any
delegation of the Board’s authority must be to at least
three members, as required by the delegation clause. Any
group to which the Board has properly delegated its au
thority must have two members present to act, as required
by the group quorum provision. This reading gives the
 Cite as: 560 U. S. ____ (2010) 5

KENNEDY, J., dissenting

delegation clause and each of the quorum provisions inde
pendent meaning.
Where two members act as a quorum of a group, the
statute (unlike the Court) is indifferent to the reason for
the third member’s absence, be it illness, recusal, or va
cancy. The Court would hold that two members of a group
can act as a quorum so long as the third’s absence is not
due to a vacancy; yet the vacancy clause makes it clear
that the authority of Board “members” to act shall not be
impaired by vacancies. The clause includes all members,
including those acting as part of three-member groups.
The Court in effect would rewrite the group quorum
provision to say, “two members shall constitute a quorum
of any group [unless the third member’s absence is due to
a vacancy].” Even if the statute said nothing about vacan
cies, this would be a misreading of the quorum provision.
A “quorum” is the “minimum number of members . . . who
must be present for a deliberative assembly to legally
transact business.” See Black’s Law Dictionary 1370 (9th
ed. 2009) (hereinafter Black’s). As the Court has made
clear in the past, quorum requirements are generally
indifferent to the reasons underlying any particular mem
ber’s absence. See Nguyen, 539 U. S., at 82.
For instance, the Court has previously discussed a
statute governing the delegation of power to three-member
panels of the federal courts of appeals. Ibid. That statute
provides: “A majority of the number of judges authorized
to constitute a court or panel thereof . . . shall constitute a
quorum.” 28 U. S. C. §46(d). While the statute makes no
mention of vacancies, the Court had little trouble conclud
ing that the statute “permits a quorum to proceed to
judgment when one member of the panel dies or is dis
qualified.” Nguyen, supra, at 82. The Court today offers
to distinguish Nguyen as being “informed by the long
standing practice of allowing two judges from the initial
panel to proceed to judgment in the case of a vacancy.”
6 NEW PROCESS STEEL, L. P. v. NLRB

KENNEDY, J., dissenting

Ante, at 12. But there was little if any reliance on any
such practice in Nguyen. In noting that its conclusion was
a matter of “settled law,” the Court relied on the text of
the statute and a single case that itself looked directly to
the statutory text of §46(d). Nguyen, supra, at 82 (citing
United States v. Allied Stevedoring Corp., 241 F. 2d 925,
927 (CA2 1957) (L. Hand, J.)).
If the group quorum provision leaves any room for doubt
that it applies in cases of vacancy, its application is made
clearer by the vacancy clause itself. That clause states in
unequivocal terms that “[a] vacancy in the Board shall not
impair the right of the remaining members to exercise all
of the powers of the Board.” §153(b). The Court makes
much of the fact that the statute refers to a vacancy in the
“Board” rather than in a “group.” But the former category
subsumes the latter. That is, the phrase “[a] vacancy in
the Board” covers the entire universe of instances in which
there may be a vacancy in a group, because all group
members are Board members.
The Court counters that the vacancy clause “speaks to
the effect of a vacancy in the Board on the authority to
exercise the powers of the Board,” ante, at 11, as opposed
to a vacancy in a group. But the Court’s abridged re
statement of the vacancy clause suffers from a critical
imprecision. The Court’s point would be well taken if the
vacancy clause stated that “a vacancy in the Board shall
not affect the power of the Board to operate.” But the
clause instead states that “[a] vacancy in the Board shall
not impair the right of the remaining members to exercise
all of the powers of the Board.” Delegee groups consist of
members exercising the powers of the Board. This clause
thus instructs that a vacancy in the Board shall not im
pair the right of members to exercise the Board’s powers,
an authority that members of delegee groups possess. But
under the Court’s reading, vacancies in the Board will
often impair the right of the remaining members to exer
 Cite as: 560 U. S. ____ (2010) 7

KENNEDY, J., dissenting

cise the powers of the Board, notwithstanding the explicit
statutory command to the contrary.
In an effort to avoid the mandates of the group quorum
provision, as buttressed by the vacancy clause, the Court
relies on the delegation clause. The Court reads the
clause as requiring a delegee group to maintain three
members in order for its authority to remain intact. In my
respectful submission, this reading of the statute, in which
any vacancy in a delegee group somehow invalidates the
delegation itself, has no textual basis. Contrary to the
Court’s and petitioner’s assertions, the delegation clause is
not rendered unimportant under the Government’s inter
pretation. The delegation clause establishes what is re
quired for delegation in the first instance, while the va
cancy clause and the group quorum provision allow the
delegee group to proceed in the event that a member’s
term expires or a member resigns.
Congress could have required a delegee group to main
tain three members, but it did not do so; instead, it in
cluded a vacancy clause that is an explicit rejection of such
a requirement. That is no doubt why the Court’s reading
has not been adopted by the five Courts of Appeals to have
rejected its result. See Teamsters Local Union No. 523 v.
NLRB, 590 F. 3d 849 (CA10 2009); Narricot Indus., L. P.
v. NLRB, 587 F. 3d 654 (CA4 2009); Snell Island SNF
LLC v. NLRB, 568 F. 3d 410 (CA2 2009); 564 F. 3d 840
(CA7 2009); Northeastern Land Servs., Ltd. v. NLRB, 560
F. 3d 36 (CA1 2009). While one court of appeals reached
the same result as the Court, it too did not adopt the
Court’s reasoning that a delegee group must maintain
three members. Laurel Baye Healthcare of Lake Lanier,
Inc. v. NLRB, 564 F. 3d 469, 472−473 (CADC 2009)
(“[T]his delegee group may act with two members so
long as the Board quorum requirement is, ‘at all times,’
satisfied”).
The Court’s reasons for nonetheless reading this re
8 NEW PROCESS STEEL, L. P. v. NLRB

KENNEDY, J., dissenting

quirement into the statutory text bring me to its second
point.
B
The Court’s textual arguments in the end reduce to a
single objection: The Government’s reading of §153(b)
allows two Board members to act as the full Board,
thereby eviscerating the requirement that the Board only
operate with a three-member quorum (or as three-member
panels). This animates the Court’s second reason for
departing from the statutory text, as the Court suggests
that had Congress “intended to authorize two members
alone to act for the Board on an ongoing basis, it could
have said so in straightforward language.” Ante, at 7. But
Congress undoubtedly permitted two members to act for
the Board: Even under the Court’s interpretation, two
members are authorized to exercise the full powers of the
Board so long as they are part of a delegee group that has
fallen to two members due to any reason other than va
cancy. Ante, at 13 (“[T]he group quorum provision still
operates to allow any panel to issue a decision by only two
members if one member is disqualified”).
The Court’s complaint, then, cannot be that Congress
did not intend two members to exercise the powers of the
Board; it must be that Congress did not intend to allow
two members to do so for protracted periods of time. The
Court is likely correct that Congress did not expect a two
member quorum to operate as the Board for extended
periods, but unintended consequences are typically the
result of unforeseen circumstances. And it should be even
more evident that Congress did not intend the Board to
cease operating entirely for an extended period of time, as
the Court’s interpretation of §153(b) now ordains. Mem
bers Liebman and Schaumber issued more than 500 opin
ions when they operated as a two-member quorum of a
properly designated group:
 Cite as: 560 U. S. ____ (2010) 9

KENNEDY, J., dissenting

“Those decisions resolved a wide variety of disputes
over union representation and allegations of unfair
labor practices, including cases involving employers’
discharges of employees for exercising their statutory
rights; disputes over secret ballot elections in which
employees voted to select a union representative; pro
tests over employers’ withdrawal of recognition from
union representatives designated by employees; re
fusals by employers or unions to honor their obliga
tion to bargain in good faith; and challenges to the re
quirement that employees pay union dues as a
condition of employment.” Brief for Respondent 6−7
(footnotes omitted).
The Court’s objection, that Congress could have been
more explicit if it wanted two members to operate as the
Board, is misplaced. There is nothing inconsistent about
Congress preferring Board decisions to be made by three
members and advancing that preference through statutory
requirements, while at the same time providing exceptions
for suboptimal circumstances, such as those presented
here. Quorum provisions do not express the legislature’s
judgment about the optimal number of members that
should be present to transact business; they set a floor
that, while less than ideal, provides a minimum number of
participants necessary to protect “against totally unrepre
sentative action.” Robert’s Rules of Order §3, p. 16 (rev.
ed. 1970).
One likely reason Congress did not permit the Board to
delegate its authority to two-member groups in the first
instance is that Congress wanted to avoid two-member
groups in the mine run of cases. Congress’ statutory
scheme achieved that goal, as the Court’s review of the
Board’s historical practices aptly demonstrates. Ante, at
7−8. Congress nonetheless provided for two-member
quorums to operate in extraordinary circumstances, where
10 NEW PROCESS STEEL, L. P. v. NLRB

KENNEDY, J., dissenting

the Board has exercised its discretion to delegate its au
thority to a particular three-member group, and one mem
ber of such a group is unavailable for whatever reason.
The Board’s delegation to a three-member group that
ultimately dwindled to two was a thoughtful and consid
erate exercise of its reasonable discretion when it was
confronted with two imperfect alternatives.
During the past two years, events have turned what
Congress had undoubtedly thought would be an extraordi
nary circumstance into an ordinary one, through no fault
of the Board. That is no reason to dispense with the statu
tory regime that is prescribed when these circumstances
arise, even when they unexpectedly persist.
C
The Court’s final reason for its interpretation is the
Board’s longstanding practice of reconstituting panels
whenever they drop below three members due to a va
cancy. But see Photo-Sonics, Inc. v. NLRB, 678 F. 2d 121,
122−123 (CA9 1982) (upholding decision from a two
member delegee group after third member retired). The
commonsense conclusion from this practice, however, is
that the Board respects the superiority of three-member
groups to two-member quorums of those groups. That the
Board reconstitutes its panels to include three members
does not demonstrate that a two-member group lacks the
authority to act when recomposition is not an option.
The Court is mistaken, then, when it suggests that, if
two-member quorums were permissible, the Board would
have a practice of allowing two-member quorums to per
sist without reconstituting panels. Persuasive authority
shows the contrary to be true. In 2003, the Office of Legal
Counsel advised that two members can operate as a quo
rum of a properly designated group, even if the other seats
on the Board are vacant. The Board agreed to be bound by
that opinion. See Dept. of Justice, Office of Legal Counsel,
 Cite as: 560 U. S. ____ (2010) 11

KENNEDY, J., dissenting

Quorum Requirements, App. to Brief for Respondent
1a−3a. Six months later, Board Member Acosta resigned.
See NLRB Bulletin, Ronald Meisburg Receives Recess
Appointment From President Bush to be NLRB Member
(Dec. 29, 2003). Despite OLC’s opinion and the Board’s
position that two-member quorums could exercise the full
powers of the Board, the Board prudently reconstituted
each three-member panel on which Member Acosta served
before his departure because there were enough members
of the Board to do so. Its own prudent actions should not
be used as a reason to strip the Board of a statutory
power.
And a further instructive history comes from the prac
tices of the original Board, before the 1947 Taft-Hartley
Act. The Wagner Act of 1935, 49 Stat. 451, provided for a
three-member Board and contained a vacancy provision
similar to the one found in §153(b): “A vacancy in the
Board shall not impair the right of the remaining mem
bers to exercise all the powers of the Board, and two mem
bers of the Board shall, at all times, constitute a quorum.”
§3(b), 49 Stat. 451. Under this statutory grant of author
ity, from 1935 to 1947 a two-member quorum of the Board
operated during three separate periods when the third
seat was vacant, issuing nearly 500 two-member decisions
during such times. Those two-member Boards issued 3
published decisions in 1936 (reported at 2 N. L. R. B.
198−240); 237 published decisions in 1940 (reported at 27
N. L. R. B. 1−1395 and 28 N. L. R. B. 1−115); and 225
published decisions in 1941 (reported at 35 N. L. R. B.
24−1360 and 36 N. L. R. B. 1−45); see also Brief for Re
spondent 3, n. 1.
Congress intended to preserve this practice when it
enacted the Taft-Hartley Act in 1947. The purpose of the
Taft-Hartley amendment was to increase the Board’s
efficiency by permitting multiple three-member groups to
exercise the full powers of the Board. See S. Rep. No. 105,
12 NEW PROCESS STEEL, L. P. v. NLRB

KENNEDY, J., dissenting

80th Cong., 1st Sess., 8 (1947) (“The expansion of the
Board . . . would permit it to operate in panels of three,
thereby increasing by 100 percent its ability to dispose of
cases expeditiously”). In furtherance of that objective, the
new statutory language in §153(b) complements the con
gressional intent to preserve the ability of two members of
the Board to exercise the Board’s full powers, in limited
circumstances, by permitting the Board to delegate “any or
all” of its powers “to any group of three or more members,”
two members of which would constitute a quorum.
D
The petitioner, but not the Court, advances an alterna
tive interpretation of §153(b) adopted by the United States
Court of Appeals for the District of Columbia Circuit. See
Brief for Petitioner 16−27; Laurel Baye, 564 F. 3d 469. In
the petitioner’s view, §153(b) requires the Board to have a
quorum of three members “at all times,” and when the
Board’s quorum fell to two members any powers that it
had delegated automatically ceased.
This is a misreading of the statute that the Court
rightly declines to adopt. Ante, at 9−10, n. 4. As ex
plained above, that the Board must meet a three-member
quorum requirement at all times when it wishes to oper
ate as the full Board does not mean it must maintain three
members in order for delegee groups to act. It just means
that the quorum requirement for the full Board, operating
independently of any delegee group, is fixed at three, as
opposed to the various dynamic quorum requirements
found elsewhere in the United States Code. See, e.g., 28
U. S. C. §46(d) (setting the quorum requirements for
courts of appeals at “[a] majority of the number of judges
authorized to constitute a court or panel thereof”); see also
Black’s 1370 (defining “proportional quorum” as: “A quo
rum calculated with reference to some defined or assumed
set, usu. either the number of seats (including vacancies)
 Cite as: 560 U. S. ____ (2010) 13

KENNEDY, J., dissenting

or the number of sitting members (excluding vacancies)”).
Petitioner’s reading ignores the operation of the word
“except” in the statute: “[T]hree members of the Board
shall, at all times, constitute a quorum of the Board, ex
cept that two members shall constitute a quorum of any
group.” §153(b).
While the Court does not adopt petitioner’s flawed
reading, it should be noted that its failure to decisively
reject it calls into question various delegations of authority
the Board has made beyond three-member groups. For
instance, §153(d) permits the Board to delegate various
powers to its general counsel, but under petitioner’s view
the general counsel would have lost all authority the
moment the Board fell to two members. See also §153(b)
(permitting Board to delegate certain powers to its re
gional directors). The Court’s assurances that its opinion
“does not cast doubt on the prior delegations of authority
to non-group members,” ante, at 10, n. 4, are cold comfort
when it fails to reject petitioner’s view outright.
* * *
It is not optimal for a two-member quorum to exercise
the full powers of the Board for an extended period of
time. But the desire to avoid that situation cannot justify
the Court’s significant revisions to §153(b): (1) It writes
language into the delegation clause, requiring delegee
groups to maintain a membership of three, despite the
conspicuous absence of this requirement and the statutory
rejection of it in the group quorum provision; (2) it excises
the word “not” from the vacancy clause, so that a Board
vacancy does “impair the right of the remaining members
to exercise all of the powers of the Board” in hundreds of
cases; (3) it renders the group quorum provision unintelli
gible, so that its application depends entirely on the rea
son for the third member’s absence, and applies in all
instances except when the absence is due to a vacancy
14 NEW PROCESS STEEL, L. P. v. NLRB

KENNEDY, J., dissenting

(despite the vacancy clause’s contrary mandate, earlier in
the very same sentence).
The Court’s revisions leave the Board defunct for ex
tended periods of time, a result that Congress surely did
not intend. The Court’s assurance that its interpretation
is designed to give practical effect to the statute should
bring it to the opposite result from the one it reaches. For
these reasons, I would affirm the judgment of the Court of
Appeals.