For nearly two years, the normally five-member National Labor Relations Board has operated with only two members. The vacancies, caused when former President Bush’s nominations to fill vacancies on the Board languished in Congress, forced the Board to take an unusual step under the advice of the board’s general counsel. The Board declared that two members create a quorum, enabling the two members to continue issuing opinions while waiting for the remaining slots to be filled.
Since then the Board has issued more than 400 opinions.
But yesterday the U.S. Supreme Court agreed to consider whether the two-member Board had the authority to continue to operate, throwing the validity of all those opinions in doubt. The split in the circuits on this issue has created a conundrum for labor lawyers.
President Obama sent three nominations to the Senate to fill the empty seats in July, and last month the Senate HELP committee advanced the nominees for full Senate consideration.