Two Person NLRB Legally Insufficient?

Repost from the Adjunct Law Prof Blog on important developing litigation in labor relations:

Authority of 2 Member NLRB To Issue Decisions Is Being
Litigated

Last
January, the Board lost several Members and has been operating with a two person
Board, instead of the normal 5. The authority of the Board to act with only 2
Members is being challenged in several cases. One such case pending in the D.C.
Circuit is Laurel Baye v. NLRB and the NLRB's brief is available
here. The Board summarized its position in its brief as follows:

Chairman Schaumber2 and Member Liebman, sitting as a two-member quorum
of a properly-established, three-member group within the meaning of Section 3(b)
of the Act, acted with the full powers of the Board in issuing the Board’s Order
in this case. As we now show, their authority to issue Board decisions and
orders is provided for in the express terms of Section 3(b), and is supported by
Section 3(b)’s legislative history, cases involving comparable circumstances
under other federal statutes, and general principles of administrative law. In
contrast, the Company’s argument must be rejected because it is based on an
incorrect reading of Section 3(b), a misunderstanding of the statute governing
federal appellate panels, which has no application to the NLRA, and is otherwise
contrary to law.

This is an important issue to watch.

Mitchell H. Rubinstein