- The Washington Times - Wednesday, March 24, 2010

The Supreme Court on Tuesday questioned whether the leading federal agency that referees labor-management disputes can make decisions when it only has two people sitting on its five-member board.

The full National Labor Relations Board delegated its authority to the smaller group when it became obvious that battles between the White House and Congress over nominations to the board were going to keep them from getting enough new members to fill out a required three-member quorum.

“It doesn’t seem to you like an evasion of the whole purpose of the quorum requirement?” asked Justice Antonin Scalia.

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.

Republicans now are blocking President Obama’s nominees, complaining that some of them favor union interests.

Decisions in hundreds of worker-employer battles could be thrown out if the Supreme Court rules against the NLRB. That decision could also force the shutdown of the NLRB when Republicans and Democrats in the Senate and White House can’t agree on who should be on the board.

Federal appellate courts have split on whether a short-staffed board could keep working, with the court in Washington saying that a two-person board is illegal and judges in Chicago and Boston saying that the delegation of authority to the smaller group was OK.

Opponents say all the decisions the two board members have made are illegal because the board needs at least three members for a quorum. “One of the things that we think is clear is that the remedy for fixing an undersized board is not for the board to redefine itself … but for Congress or the president to act,” said lawyer Sheldon E. Richie, who represented New Process Steel LP, which lost an unfair labor practices case in front of the short-staffed NLRB.

But government lawyers said the full board legally voted to give all of its power to the two members, and the decisions made since then are legal. NLRB Chairman Wilma Liebman, a Democrat, and fellow board member Peter Schaumber, a Republican, have issued about 586 decisions as a two-member board.

“I am not here suggesting that the two-member board is ideal or equivalent or optimal,” Deputy Solicitor General Neal Katyal said. “But faced with a vacancy crisis and shutting down the board entirely, I think the board did the prudent thing here by continuing to operate, continuing for these 800 or so days to decide these cases.”

The NLRB is an independent federal agency created by Congress in 1935 to administer the National Labor Relations Act, the primary law governing relations between unions and employers. The five members are nominated to five-year terms by the president and must be confirmed by the Senate.

The court is expected to make a decision by the fall.

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