The U.S. Supreme Court has agreed to decide whether the National Labor Relations Board (NLRB) has the authority to decide cases with only two sitting members. The Court has granted a petition to review the decision in New Process Steel v. National Labor Relations Board (08-1457) (pdf), in which the Court of Appeals for the Seventh Circuit upheld a two-member Board decision against a challenge claiming that two members were insufficient to constitute a quorum of the Board and therefore could not decide cases. The same day this case was decided, the U.S. Court of Appeals for the District of Columbia Circuit reached the opposite conclusion in Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB (pdf), finding that the two-member panel did not constitute a quorum. The First Circuit has weighed in on this issue as well, upholding the two-member panel’s authority to issue orders in Northeastern Land Services, Ltd. v. NLRB (pdf).  

Section 3(b) of the National Labor Relations Act (NLRA) provides that “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 Board – anticipating that it would be left with only two members when two other members’ terms expired on December 31, 2007, while a fifth seat remained vacant – delegated powers to a three-member group to ensure that the remaining two members whose terms had not yet expired would be able to operate as a fully-functioning Board. The question is whether two members constitute a quorum in this instance, or whether three members are still required to issue a decision. The legitimacy of more than 400 two-member NLRB decisions now rests with the Supreme Court.

Meanwhile, President Obama’s three NLRB nominees for the remaining seats have been cleared by the Senate Health, Education, Labor and Pensions Committee, but await full Senate confirmation.