With a clear conflict among the federal Circuit Courts and with the National Labor Relations Board and employers calling to have the Board quorum issue settled, the United States Supreme Court has agreed to decide whether the NLRB is authorized to render decisions while three of its five seats remain vacant.  The Court granted certiorari to the Board’s September 29 request to determine whether the National Labor Relations Act authorizes the agency to act with only two members if the Board previously delegated its full powers to a three-member group that included the two remaining members. 

The Court said it would review the Seventh Circuit’s decision in New Process Steel v. NLRB (No. 08-3517, 7th Cir. May 1, 2009) (where, this May, the Court held that the Board had such authority) in a brief order issued November 2. A petition for certiorari is still pending in Laurel Baye Healthcare v. NLRB (No. 08-1214, D.C. Cir. May 1, 2009) (where, also this May, the District of Columbia Circuit held that the Board lacked such authority), as well as in two other cases, from the Second Circuit and the First Circuit, both of which sustained the Board’s position, albeit on somewhat different grounds from the New Process Steel decision. Snell Island SNF v. NLRB (No. 08-3822/08-4336, 2d Cir., June 17, 2009) and Northeastern Land Svcs. v. NLRB (No. 08-1878, 1^st Cir., Mar. 13, 2009). A ruling on the petition in Laurel Baye is expected shortly.

The dispute concerns the meaning of a provision in the National Labor Relations Act creating the NLRB. It provides, in part, that the NLRB: 

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).

Since January 2008, the Board has been functioning with only two members — Chairman Wilma Liebman and Member Peter Schaumber. In December 2007, when the Board still had four members (with two recess appointments about to expire), it delegated its powers to a three-member panel. When Board membership shrank to two, the agency said the NLRA allowed it to continue operation. The two-member Board is estimated to have issued more than 400 decisions in the nearly two years it has been operating.

President Barack Obama has nominated three candidatesto fill the empty seats on the Board:  two labor-side attorneys, Craig Becker and Mark Gaston Pearce, and the current Republican Labor Policy Director for the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP), Brian Hayes. These nominees have cleared the HELP Committee but one or more Senator’s have placed holds on Mr. Becker’s controversial nomination. These Senatorial holds will delay the nominations from reaching the Senate floor for a confirmation vote.

The Supreme Court’s decision in New Process Steel is expected next Spring.