For nearly two years now, the National Labor Relations Board has been operating with just two out of five members, Chairman Wilma Liebman (D) and Member Peter Schaumber (R). On Nov. 2, 2009, the U.S. Supreme Court agreed to consider whether the board has the legal authority to issue two-member rulings. New Process Steel LP v. NLRB, No 08-1457, cert granted 11/2/09. According to the board, it has had the authority to issue such decisions pursuant to Section 3(b) of the National Labor Relations Act and a March 2003 opinion by the Justice Department, which found that if the full board delegates all of its powers to a three-member panel and one of those members leaves the board, the remaining two members constitute a quorum.
However, the U.S. Court of Appeals for the D.C. Circuit has thrown into question hundreds of decisions made by the two-member board, after its finding in Laurel Baye Healthcare of Lake Lanier v. NLRB, 564 F3d 469 (DC Cir. 2009), that the board does not have the authority to act with fewer than three members. On the other hand, the First, Second and Seventh circuits have held in favor of the board.
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