Justice Dept. Asks Supreme Court to Decide on NLRB Rulings

by Mike Hall, Sep 30, 2009

For nearly two years, the National Labor Relations Board (NLRB) has been hearing cases and issuing rules with just two members. While many of those decisions were accepted by the parties involved, dozens have been appealed to federal courts citing the two-member status of the NLRB and arguing that a two member board did not constitute a quorum that could act under the National Labor Relations Act. The five-member NLRB is staffed by presidential nominees who must be approved by the Senate.

Today, on behalf of the National Labor Relations Board, Solicitor General Elena Kagan asked the U.S. Supreme Court to settle the question of whether the board is authorized to issue decisions while three of its five seats remain vacant.

After the terms of two board members expired in December 2007 (the fifth seat already was vacant), the two remaining members—current Chairman Wilma B. Liebman, a Democrat, and member Peter Schaumber, a Republican—relied on the advice of U.S. Department of Justice’s Office of Legal Counsel that the NLRB could continue to issue decisions. The Justice Department’s opinion was issued in 2003, when it appeared there might be a two-member board, which wound up not happening at that time.

But in the cases that have been appealed in various federal appeals court circuits, the courts have issued different rulings. Three of the courts have upheld the two-member board’s authority to decide cases and one—the District of Columbia U.S. Circuit Court of Appeals—ruled the two-member NLRB did not have the authority to act. Says Liebman:

We continue to believe that our position is correct, and hope that a decision from the high court will bring some finality to these cases.

As Schaumber says:

It is critical to the agency’s mission that this issue be decided.

President Obama has nominated three additional members to the board, and they currently are awaiting Senate confirmation. But there are reports that some Republican senators are blocking action on the nominations.

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