It Takes Two? Supreme Court to Decide on Two-Member NLRB Decisions

Tuesday, 03 November 2009 09:12

Labor Relations

On Monday, November 2, 2009, The United States Supreme Court agreed to decide whether the National Labor Relations Board (NLRB) can decide cases with only two sitting members.  Federal Appellate Courts are split on the issue.

In New Process Steel v. NLRB the Seventh Circuit upheld a two member decision.  However, the U.S. Court of Appeals for the District of Columbia Circuit reached the opposite conclusion on the same day in Laurel Bay Healthcare of Lake Lanier, Inc. v. NLRB .

At issue is Section 3(b) of the National Labor Relations Act (NLRA) which provides "three members of the Board shall, at all times, constitute a quorum of the Board." It also provides that 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."  The NLRB typically has five members.  The Board was anticipating that it would be left with only two members when the terms of two members expired on December 31, 2007, with a fifth seat vacant.  The Board delegated powers to a "three-member group" to ensure the remaining two members whose terms had not expired, could operate as a fully functioning Board.

The Supreme Court must decide whether two members constitute a quorum in this instance, or whether three members are still required to issue a decision.

Counsel to Management

It remains to be seen what the Supreme Court will do.  The case will be argued next year.  A ruling could come by late June.  The two-member Board has decided more than 400 cases.  The Supreme Court will decide whether or not those decisions are legitimate.  Obviously, the overturning of more than 400 cases would have a significant impact and could open the flood gates for the NLRB.  The NLRB may be back to five members to help shoulder the load soon though.  President Obama's three NLRB nominees have been cleared by the Senate Health, Education, Labor and Pensions Committee, but await full Senate confirmation.  The biggest question mark is nominee Craig Becker who has drawn much criticism.     

The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with The Saqui Law Group at (831) 443-7100 in Salinas.