Thursday, January 28, 2010

Kleisinger and Bales on the Two-Member Board

Bales Kelli Kleisinger (Northern Kentucky) and our own Rick Bales (Northern Kentucky), has just posted on SSRN their article, "The Validity of the Two-Member NLRB," which will appear in the Seton Hall Circuit Review.  The abstract:

The National Labor Relations Act is supposed to consist of five members. The terms of three members have expired and those members have not been replaced. The two remaining members have continued to issue decisions, notwithstanding statutory language requiring that the Board have, β€œat all times,” a quorum of three.

One federal circuit has held that the hundreds of decisions since issued by the two-member Board are invalid. Five circuits have ruled that the decisions are valid. The Supreme Court has granted certiorari. We believe that the Court should – and will – hold that the two-member Board decisions are contrary to the express language of the statute.

Needless to say, with the pending Supreme Court arguments in New Process, this is a timely issue.

Check it out!


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