The National Labor Relations Board had only 2 members beginning on December 31, 2007, even though 5 were authorized and the Board allows 2 members to decide cases when a quorum of 3 exists. The Seventh Circuit upheld a decision by the 2-member board, but the D.C. Circuit, on the same day, ruled that the Board must have at least 3 sitting members. Several hundred decisions by the 2-member Board were affected. This dilemma was caused when President Bush's recess appointments were blocked by Senate Democrats.
On 5/24/10, the Supreme Court ruled 5 to 4 that the National Labor Relations Act requires that there be at least 3 members on the Board in order to exercise the delegated authority of the Board. Section 3(b) requires delegation to at least 3 members. Their membership must be maintained for this delegation to continue to be valid. Since the decision, the NLRB has been revisiting many of the decisions that were thrown into doubt.