Is the National Labor Relations Board statutorily empowered by and under Section 3(b) of the National Labor Relations Act to issue decisions and orders when the membership of this five-member agency falls to two active members? This important question, now before the United States Supreme Court, has been considered by several federal courts of appeals in recent rulings addressing challenges to the two-member Board’s adjudicatory power and decision making authority. This essay focuses on the interpretive theories adopted, methodologies employed, and adjudicative choices made by the courts of appeals grappling with the Section 3(b) quorum issue, and argues that the best reading of Section 3(b) and that provision’s requirement that “three members of the Board shall, at all times, constitute a quorum of the Board” is one which terminates the two-member Board’s decisional authority.
"On the Authority of the Two-Member NLRB: Statutory Interpretation Approaches and Judicial Choices,"
Hofstra Labor & Employment Law Journal: Vol. 27
, Article 2.
Available at: http://scholarlycommons.law.hofstra.edu/hlelj/vol27/iss1/2