Two Member NLRB Legal, At Least in the First Circuit

The NLRB has been working with only two members (out of five) for over a year now. The two members (one Democrat and one Republican) have only issued decisions when they could agree, which for the most part means the outcome was not particularly controversial.

However, the legitimacy of those decisions is of great importance to the parties to the ruling and challenges have been pending in both the DC and First Circuits. For some background see Authority of 2 Member NLRB To Issue Decisions Is Being Litigated at the Adjunct Law Prof Blog.

Today, in Northeastern Land Services, Ltd. v. NLRB (1st Cir. 3/13/09) held that the two member Board had the power to act. The Court based its decision in part on Chevron deference to the Board's view of its powers and also agreed with a 1982 decision of the 9th Circuit.

The case pending in the DC Circuit is Laurel Baye v. NLRB.