The Supreme Court today agreed to rule on whether the vacancy-riddled National Labor Relations Board has the authority to make decisions with only two of its five members currently in office.
The board has been operating with two members since January 1, 2008, and has issued more than 400 decisions resolving allegations of unfair labor practices and disputes over union representation, including cases involving employers’ discharges of employees for exercising their organizational rights; disputes over secret ballot elections to select a union representative; employers’ unlawful withdrawals of recognition of union representatives, and refusals by employers or unions to honor their obligation to bargain in good faith.
At least 60 challenges to the validity of two-member rulings have been filed in the federal appeals courts, according to the board.
Solicitor General Elena Kagan, on behalf of the NLRB, had urged the justices to grant review in New Process Steel v. NLRB, in order to resolve a conflict among the circuits over the board’s authority to act.
The U.S. Court of Appeals for the 7th Circuit, in agreement with the 1st and 2d circuits, upheld the authority of two-member board decisions in the New Process Steel case. But the D.C. Circuit, in Laurel Baye Healthcare v. NLRB, held that Section 3(b) of the National Labor Relations Act requires a three-member quorum at all times.
“Although the current period—now more than 20 months long—is the longest the Board has ever been with only two sitting members since Section 3(b) was amended in 1947, the Board has previously had only two members and may again in the future,” Kagan told the high court. “Resolution of the question whether the Board may act with a two-member quorum of a three-member group is, therefore, important to the Board’s future ability to enforce the NLRA—and vital to its current ability to do so.”
The quorum issue arose in late 2007 when the board’s then-four members anticipated losing two of those members when their recess appointments expired at the end of the year. On December 28, 2007, the four sitting members of the board delegated all of the board’s powers to a three-member group. After the recess appointments expired, the remaining board members—Wilma Liebman and Peter Schaumber—acting as a two-member quorum, continued to exercise the powers the Board had delegated to the three-member group.
Clifford Nelson Jr., co-chair of the labor practice group at Atlanta’s Constangy, Brooks & Smith and counsel to Laurel Baye, said high court review is important to end the uncertainty about the validity of “possibly more than 400 decisions and a growing number of contested decisions based on the lack of a proper quorum.” That uncertainty, he added, “isn’t good at all when dealing with this particular field.”
President Obama in July nominated Craig Becker, Mark Gaston Pearce and Brian Hayes to be members of the NLRB. The nominations were voted out of committee last month and are pending in the Senate.