A news release from the National Labor Relations Board, "Supreme Court is asked to settle the question of two-member rulings by the NLRB":
Washington, DC -- On behalf of the National Labor Relations Board, the Solicitor General of the United States today asked the Supreme Court to settle the question of whether the Board is authorized to issue decisions while three of its five seats remain vacant.
The request was made in two actions: a petition for certiorari in Laurel Baye Healthcare
of Lake Lanier, Inc. v. NLRB (see the petition), and a response to a certiorari petition filed by an employer in New Process Steel, LP v. NLRB (see the response).
The Board has operated with only two members since the start of 2008, when the terms for two other members expired. The current chairman, Wilma B. Liebman, and Peter C. Schaumber, a Republican, have continued to issue decisions.
In May, the D.C. Circuit found the NLRB's decision in the Laurel Bay Healthcare dispute to be invalid because two members did not constitute a quorum. (Wall Street Journal story; Blog of the Legal Times coverage.)
No surprise, the issue is deep in partisan politics.
On Jan. 25, 2008, President George W. Bush nominated former FLRB Chairman Robert Battista (a Republican) and Dennis P. Walsh (a Democrat), and Gerald Morales (a Republican) to fill the vacancies on the board. However, Senate Democrats refused to act on the nominations and, by scheduling pro forma sessions throughout 2008, blocked any recess appointments to allow the President to fill the vacancies.
Thus, a court ruling that overturns NLRB decisions made by a two-member board would reward a Senate for refusing to perform its constitutional function of advise and consent.
The two-member board seems destined to continue for a while. President Obama in February nominated two Democrats to become board members, Craig Becker, associate counsel for the SEIU, and Mark Pearce, a Buffalo labor lawyers. In July, he nominated a Republican, Brian Hayes, Republican Labor Policy Director for the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP).
No action yet by the Senate HELP Committee, however. The committee holds its next executive session to consider nominees on October 7, and no NLRB nominees are on agenda. (Nor is David Michaels to head OSHA, for that matter.)