By Paul M. Secunda, Associate Professor of Law, Marquette University Law School
This morning, the U.S. Supreme Court heard oral argument in an important case at the intersection of labor law, statutory interpretation, and administrative law. In New Process Steel, L.P. v. NLRB, on appeal from the Seventh Circuit Court of Appeals, the Court will decide whether a two-member National Labor Relations Board (NLRB or Board) has the authority to engage in adjudication on behalf of the Board. The Board has operated with only two members for over two years, since the appointments of two Board members expired on December 31, 2007. Just before that time, effective midnight, December 28, 2007, the Board delegated all of its powers to a group of three members to continue to issue decisions and orders as long as a quorum of two members remained. Since that time, the two Board members remaining, acting as a quorum of the group, have issued over 500 decisions.
First, some labor law background: the NLRB is an independent federal agency, established to prevent and remedy violations of the National Labor Relations Act, 29 U.S.C. §§ 151-169, called "unfair labor practices," by both employers and unions, and also to hold union representation elections. The Board is supposed to be a five-member panel that primarily acts as a quasi-judicial body in deciding cases on the basis of formal records in administrative proceedings. Board Members are appointed by the President to 5-year terms, with Senate consent. The terms of the Board members are staggered such that the term of one Member expires each year. Because of the political nature of Board appointments (with the President's party controlling three positions), the last couple decades have seen many vacancies on the Board. In the last few years, political partisanship has reached an all-time high and President Obama's recent nomination of Craig Becker to serve as a Member on the Board was filibustered by Senate Republicans this past February.