[JURIST] The US Department of Justice (DOJ) [official website] on Tuesday asked [press release] the Supreme Court [official website] to rule that the National Labor Relations Board (NLRB) [official website] is authorized to issue decisions regarding the Nation Labor Relations Act (NLRA) [text] when three out of five board seats are vacant. US Solicitor General Elena Kagan [official profile] filed a petition for certiorari in one case and a reply brief [texts, PDF] in another, asking the Court to uphold all decisions issued by the current two-member board, which consists of Democrat chair Wilma Liebman, and Republican member Peter Schaumber [official profiles]. The ruling would resolve a circuit split in which the the US Courts of Appeal for the First, Second, and Seventh Circuits [official websites] have upheld the board's decisions, and the US Court of Appeals for the District of Columbia Circuit [official website] has invalidated [opinion, PDF] them.

The NLRB has been operating with only two members since December 2007 when the terms of two previously appointed members expired. During this time the two-member board has issued more than 500 decisions, some of which have been appealed. US President Barack Obama nominated [AP report] three new members to board in August, but the appointees have not yet been considered by Congress. The NLRB was created in 1935 in order to administer the provisions of the NLRA, with each member's term lasting five years, staggered so that one term expires each year.