The U.S. Supreme Court today holds oral arguments in the case, New Process Steel v. National Labor Relations Board. The question presented:
Does the National Labor Relations Board have authority to decide cases with only two sitting members, where 29 U.S.C. § 153(b) provides that “three members of the Board shall, at all times, constitute a quorum of the Board”?
As the ScotusWiki entry on the case explains: “The events leading to this case have their origins in late December 2007, when the Board had four members. With the terms of two of those four members about to expire, the Board delegated its authority to a ‘group of three or more members.’ One of those three members left a few days later, leaving two Board members – who have made all NLRB decisions since then.”
This dilemma was caused when President Bush’s recess appointments were blocked by Senate Democrats after Senate Majority Leader Harry Reid (D-NV) began the practice of scheduling pro forma sessions to prevent the occurrences of recesses.
The U.S. Seventh Circuit of Appeals on May 1, 2009, upheld a decision by the two-member board, recognizing the smaller quorum. On the same day, however, the D.C. Circuit ruled that the Board must have at least three sitting members. Several hundred decisions by the smaller NLRB could be in jeopardy.
Big Labor and its allies in Congress have challenged the legitimacy of the smaller National Labor Relations Board to argue for approval of President Obama’s nominees to the NLRB, including the controversial SEIU counsel Craig Becker. If the President decides to make Becker his first recess appointment — something that could occur as early as next week — Becker’s defenders will cite the Supreme Court case as one reason. But of course you don’t have to have to appoint a radical labor union counsel to achieve a larger quorum. You can simply start with Senate confirmation or a recess appointment of the other two nominees, Mark Pearce and Brian Hayes.
Earlier posts on Craig Becker.
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