The U.S. Supreme Court heard oral arguments on Tuesday in the case of New Process Steel v. National Labor Relations Board, litigation over the validity of decisions made by a two-member NLRB.
Reading the transcript of the arguments, this layman concedes that Sheldon Richie, the attorney for the petitioner, New Process, seems to have the statute on his side when arguing against a two-member quorum. Section 3(b) of the National Labor Relations Act states that the “Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise.”
Then again, the 7th Circuit upheld the force of the NLRB’s decisions made under the delegation to a three-member quorum, even when only two members were sitting.
The transcript reveals a brief discussion of recess appointments, especially timely given today’s reports that President Obama may make a recess appointment of SEIU counsel Craig Becker to the NLRB, even though the Senate effectively rejected his candidacy by failing to invoke cloture on his confirmation vote. (Katyal is Neal K. Katyal, Deputy U.S. Solicitor General, representing the NLRB):
JUSTICE GINSBURG: There are — there are two nominees, are there not?
MR. KATYAL: There are three nominees pending right now.
JUSTICE GINSBURG: Three?
MR. KATYAL: Yes. And they have been pending. They were named in July of last year. They were voted out of committee in October. One of them had a hold and had to be renominated. That renomination took place. There was a failed quorum — a failed cloture vote in February. And so all three nominations are pending. And I think that underscores the general contentious nature of the appointment process with respect to this set of issues.
CHIEF JUSTICE ROBERTS: And the recess appointment power doesn’t work why?
MR. KATYAL: The — the recess appointment power can work in — in a recess. I think our office has opined the recess has to be longer than 3 days. And — and so, it is potentially available to avert the future crisis that — that could — that could take place with respect to the board.
That said, creating an unquestionably legitimate quorum does not require the appointment of Becker. Two other, non-controversial nominees are pending — Mark Pearce and Brian Hayes. Their confirmation or recess appointments would create a four-member quorum.
- National Law Journal, “Labor Decisions at Risk as Justices Struggle With NLRB Authority“
- Associated Press, “Court to decide whether two-member NLRB can work
- Slate.com, “A case tests the arithmetical skills of the Supreme Court justices“
The Associated Press story notes important context: “When at full strength, the National Labor Relations Board has five members. But it has operated with only two members for more than two years because Democrats refused to confirm President George W. Bush’s nominees because of complaints that they were pro-business.”
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