See here:
http://www.nlrb.gov/shared_files/Press%20Releases/2009/R-2704.pdfAlso here:
http://www.pointoflaw.com/archives/2009/09/nlrb-asks-supre.phpNLRB asks Supreme Court to rule on decisions by 2-member board
A news release from the National Labor Relations Board, "Supreme Court is asked to settle the question of two-member rulings by the NLRB":
Washington, DC -- On behalf of the National Labor Relations Board, the Solicitor General of the United States today asked the Supreme Court to settle the question of whether the Board is authorized to issue decisions while three of its five seats remain vacant.
The request was made in two actions: a petition for certiorari in Laurel Baye Healthcare
of Lake Lanier, Inc. v. NLRB (see the petition), and a response to a certiorari petition filed by an employer in New Process Steel, LP v. NLRB (see the response).
The Board has operated with only two members since the start of 2008, when the terms for two other members expired. The current chairman, Wilma B. Liebman, and Peter C. Schaumber, a Republican, have continued to issue decisions.
In May, the D.C. Circuit found the NLRB's decision in the Laurel Bay Healthcare dispute to be invalid because two members did not constitute a quorum. (Wall Street Journal story; Blog of the Legal Times coverage.)
No surprise, the issue is deep in partisan politics....