Another Circuit Court rules on validity of two-member NLRB decisions

This week, the Second Circuit ruled in support of well over 100 two-member NLRB decisions. The tally now stands at 3-1. The issue: whether a quorum of the Board can be constituted with just two of five members under Section 3(b) of the NLRA.

Joining the First and Seventh Circuits, the court, in Snell Island SNF v NLRB, believed the Board's view "is a reasonable interpretation of the statute. Indeed, we commend the NLRB for its conscientious efforts to stay 'open for business' in the face of vacancies that it did not create and for which it lacked the authority to fill."

As noted in Workplace Prof Blog, a decision from the Eighth Circuit will be forthcoming, making the issue even more destined for the Supreme Court. A Petition of Certiorari has already been filed in New Process Steel by the law firm Greenberg Traurig, P.A. "The D.C. Circuit [in Laurel Baye Healthcare v NLRB] correctly held that the NLRA does not permit the board to function with only two members. We believe that the Seventh Circuit's decision is an incorrect interpretation of the act," said Joseph W. Ambash, one of the attorneys representing New Process.

Here is a rundown of the cases on the matter to date.

For the Board:

• Northeasern Land Services v NLRB, 1stCir, May 13, 2009
• Snell Island SNF v NLRB, 2ndCir, June 17, 2009
• New Process Steel v NLRB, 7thCir, May 1, 2009

And against:

• Laurel Baye Healthcare v NLRB, DCCir, May 1, 2009