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Cert granted: Is the NLRB authorized to act when only two of its five positions are filled?
November 02, 2009 by Ross Runkel at LawMemo
The NLRB has had only two Members (instead of the normal five Members) since the end of 2007. Near the end of 2007, there were still four Members, and they delegated their powers to a group of three. Everybody knew that only two of those three would be left at the end of the year.
The NLRB's position has always been that the surviving two Members are a quorum of the three to whom powers were delegated.
Employers have argued that the whole thing was a sham. On a more technical level, the argument was that the Board's delegation could not survive the loss of a quorum on the Board itself.
The 7th Circuit held that the NLRB had the statutory authority to hear cases and issue orders regarding unfair labor practice charges.
The US Supreme Court granted certiorari on November 2, 2009 to review the 7th Circuit judgment. New Process Steel v. National Labor Relations Board.
The official question presented:
Does the National Labor Relations Board have authority to decide cases with only two sitting members, where 29 U.S.C. ยง 153(b) provides that "three members of the Board shall, at all times, constitute a quorum of the Board"?
[Briefs]
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