Hunton Employment & Labor Perspectives

The Supreme Court agreed on November 2, 2009 to decide whether decisions of the National Labor Relations Board (NLRB) are valid if they were reached by only two members when other NLRB seats were vacant.  In New Process Steel, LP v. NLRB, the Seventh Circuit concluded that the NLRB’s two-member decision in that case was appropriate and binding.  The Supreme Court is expected to hold oral argument early next year and decide the case in June 2010. 

Since January 1, 2008, the Board has operated with three vacancies, leaving only two members to make decisions regarding labor-management disputes in the workplace.  In the past 16 months, Chairman Wilma Liebman and Member Peter Schaumber have issued more than 400 decisions—all of which could be invalidated based on the Supreme Court’s ruling.  Dozens of these decisions were appealed to federal courts of appeal on the two-member question, and the appellate decisions have been mixed.  The U.S. Courts of Appeal for the First, Second, and Seventh Circuits have upheld the decisions as valid, while the D.C. Circuit took the opposite position. 

Resolution of the issue turns on interpretation of the National Labor Relations Act’s quorum provision, 29 U.S.C. § 153(b).  In arguing for rejection of the Board’s ruling, New Process Steel relies on the Act’s statement that “three members of the Board shall, at all times, constitute a quorum of the Board.”  The Board’s contrary position is based on statutory language that indicates that two members may constitute a quorum when an appropriate designation has been made.

Until the issue is resolved by the Supreme Court, the precedential value of the two-member decisions will remain uncertain.