The National Labor Relations Board has been understaffed since January 2008, when two of the Board’s four sitting members stepped down as their terms expired.  Since that time, the vacated seats have remained open and relatively unnoticed, while the Board’s two remaining members continued to issue decisions and orders in representation and unfair labor practice cases.  On Friday, May 1, the Seventh and D.C. Circuits simultaneously issued conflicting decisions governing the NLRB’s ability to issue two-person decisions, placing the 400+ decisions and orders issued by the two-member panel over the past 16 months in jeopardy.

The Circuit Courts came to opposite conclusions after reviewing the same section of the NLRA which addresses when the Board may operate with fewer than three members.  According to the Seventh Circuit, § 3(b) of the NLRA permits a two-member board as long as a group of no fewer than three members delegated its power to the two-member board, which occurred before the two appointees stepped down in January 2008.  The D.C. Circuit disagreed, ruling in a separate case that § 3(b) requires a quorum of not less than three members at all times.  Because any NLRB decision can be appealed to the D.C. Circuit, there is serious concern that parties who had decisions issued by the two-person panel will appeal, placing 400-plus decisions and orders at risk of being invalidated.  At least ten other lawsuits questioning the legality of decisions issued by the two-member Board have been filed in various federal appeals courts, and cases are pending in the Second and Eighth Circuits.