Authority of 2 Member NLRB To Issue Decisions Is Being Litigated

Last January, the Board lost several Members and has been operating with a two person Board, instead of the normal 5. The authority of the Board to act with only 2 Members is being challenged in several cases. One such case pending in the D.C. Circuit is Laurel Baye v. NLRB and the NLRB's brief is available here. The Board summarized its position in its brief as follows:

Chairman Schaumber2 and Member Liebman, sitting as a two-member quorum of a properly-established, three-member group within the meaning of Section 3(b) of the Act, acted with the full powers of the Board in issuing the Board’s Order in this case. As we now show, their authority to issue Board decisions and orders is provided for in the express terms of Section 3(b), and is supported by Section 3(b)’s legislative history, cases involving comparable circumstances under other federal statutes, and general principles of administrative law. In contrast, the Company’s argument must be rejected because it is based on an incorrect reading of Section 3(b), a misunderstanding of the statute governing federal appellate panels, which has no application to the NLRA, and is otherwise contrary to law.

This is an important issue to watch.

Mitchell H. Rubinstein