Although two other courts of appeals had previously decided otherwise, on May 1, the District of Columbia Circuit Court of Appeals ruled that a two-person National Labor Relations Board (NLRB) could not render decisions in NLRB cases. The case in question was an appeal of the NLRB’s finding that management at Laurel Baye, a nursing home, had engaged in unfair labor practices. Laurel Baye did not challenge that ruling; however, it did challenge whether the NLRB even has the authority to issue a decision.
The issue of the two-member NLRB’s authority is still pending before several other appellate courts; however, in the meantime, does the D.C. appeals court’s ruling also affect other decisions the two-member Board has issued since December of 2007?
The NLRB only had 2 members starting in early 2008. Former NLRB Chairman Robert J. Battista’s term expired on December 16, 2007, leaving one vacancy. Anticipating a loss of two more members in January 2008, the remaining NLRB members unanimously decided to temporarily delegate to the NLRB general counsel authority on all court litigation matters that otherwise would require Board authorization. That gave the general counsel full and final authority on behalf of the NLRB to initiate and prosecute injunction proceedings under Section 10(j), or Section 10(e) and (f), of the National Labor Relations Act (NLRA).
The NLRB’s delegation decision in December 2007 was based, as the District of Columbia Circuit Court recognized, on a reasonable interpretation of the law and on a desire to keep the Board’s important work from coming to a complete halt for an indefinite period.
On December 20, 2007, the sitting members were Wilma B. Liebman, Peter C. Schaumber, Peter N. Kirsanow, and Dennis P.Walsh. Kirsanow and Walsh were serving in recess appointments that would expire when the Congressional session ended in January of 2008.
Under those circumstances, the NLRB also delegated its powers to Liebman, Schaumber, and Kirsanow. The Board took that action to permit Liebman and Schaumber, as a quorum of the three-member group, to issue decisions and orders in unfair labor practice and representation cases. In 2005, a three-member NLRB issued a similar delegation permitting a two-member quorum to issue decisions.
The NLRB acted under Section 3(b) of the NLRA, which allows the Board to delegate to any group of three or more members any or all of the powers that it may itself exercise. Additionally, the NLRB relied on the legal analysis and U. S. Circuit Court precedent set forth in the March 4, 2003, opinion issued by the Office of Legal Counsel (OLC) of the U.S. Department of Justice in response to the NLRB’s May 16, 2002, request for OLC’s opinion on whether the Board may issue decisions during periods when three or more of the five seats on the Board are vacant. OLC’s opinion concluded that “if the Board delegated all of its powers to a group of three members, that group could continue to issue decisions and orders as long as a quorum of two members remained.”
The NLRB has historically relied on that reasoning when one member of a three-member Board is disqualified or recused from participating on the merits of a case. The NLRB also noted that OLC’s opinion does not distinguish between decisions that were pending at the time of the delegation of authority to the three-member Board and decisions that are submitted to the NLRB after the delegation and the departure of the third member.
Current Chairperson Liebman stated, “for the last 16 months, Member Peter Schaumber and I have been dedicated to resolving cases and to avoiding a decisional backlog. We have issued about 400 decisions during this period.”
The NLRB still has only two members, with three vacancies. President Barack Obama, however, recently announced his intention to nominate two labor lawyers to the Board.