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NLRB Counsel Authority Challenge Denied U.S. High Court Review

The U.S. Supreme Court declined to hear a challenge to the power of the National Labor Relations Board’s general counsel to bring complaints when the board lacks a quorum.

The justices today rejected an appeal from a hotel in Waikiki, Honolulu, which claimed the NLRB wrongfully brought a complaint on behalf of International Longshore and Warehouse Union Local 142 over unfair labor practices. The hotel claimed the board isn’t allowed to pass its authority to its general counsel when it lacks a quorum.

The court in 2010 said the NLRB, which had operated for 27 months with only two of its five seats filled, needed at least three members to issue decisions. Voting 5-4, the justices said Congress didn’t authorize the board to act with only two members.

Anticipating membership would fall below the required quorum, the board in November 2011 “temporarily” delegated its powers to the general counsel on legal matters that would normally require the board’s approval.

The hotel asked the high court to review the case in light of a dispute over whether the board can even bring complaints. With only two members confirmed by the Senate and facing gridlock over other nominations, President Barack Obama in January appointed three members before seeking Senate confirmation, asserting that Congress was in recess. Those appointments are separately being challenged in other courts with Republicans arguing that Congress was still in session.

The case is HTH Corp. v Frankl, 11-622.

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