Thursday, January 24, 2008

The 2-0 NLRB Decisions Have Begun

Nlrb_2 As Rick noted in an earlier post, the remaining two members of the NLRB previously asserted that they have the authority to issue decisions.  Now, they've made it official.  Members Liebman and Schaumber have issued a decision in Aluminum Casting & Engineering Co., 352 N.L.R.B. No. 1 (Jan. 18, 2008), a backpay specification case (illustrating my comment to Rick's post that this development will generally help unions and employees).  In its decision, the Board (if you can still call it that) notes:

Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kirsanow and Walsh on December 31, 2007. Pursuant to this delegation, Members Liebman and Schaumber constitute a quorum of the three member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act.

The Board had earlier cited a 2003 Office of Legal Counsel memo on this issue  That memo answers the question "whether, having delegated all of its powers to a group of three members, the National Labor Relations Board (“Board”) may issue decisions and orders in unfair labor practice and representation cases once three of the five seats on the Board have become vacant."  The OLC responded that "[w]e believe that the Board may issue such decisions and orders if the two remaining members are part of the three-member group to which the Board delegated all of its powers and if they both participate in such decisions and orders."  The statutory basis for the OLC's conclusion was that:

The statute permits the Board to “delegate to any group of three . . . members any or all of the powers which it may itself exercise.” 29 U.S.C. § 153(b). In the proposed arrangement, the three remaining members of the Board would constitute themselves a “group” of the Board and would delegate to that group “all of the [Board’s] powers.” The statute further declares that, where the Board has delegated power to a group of three or more members, a quorum of the group shall be two members. Id. The provision for a two-member quorum of such a group is an express exception to the requirement that a quorum of the Board shall be three members: “[T]hree members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group designated” by the Board. Id. Moreover, the statute states that “[a] vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board.” Id. (emphasis added). We therefore conclude that the plain terms of section 153(b) provide that the Board could form a “group” that could exercise all of the Board’s powers as long as it had a quorum of two members.

I'll admit that, after reading the OLC memo, I'm not as skeptical of its conclusion as I once was.  That's not to say that I'm convinced, however.  It's not clear to me that the language above authorizes a three-member panel to delegate authority to a two-member panel once that three-member panel no longer exists.  In other words, I'm suspicious of the argument that a group of Board members can give a delegation that continues after that group is gone.  What I think is more obvious is that Congress wasn't thinking about this situation when it enacted the NLRA (not that they had any reason to).  It's hard to believe that Congress would be OK with a Board issuing decisions while it has only two members for an indefinite amount of time.  These provisions seem directed more to temporary delegations. 

About the only thing that I feel confident about is that this will be tested in court (probably the D.C. Circuit).  I'm looking forward to seeing how this comes out.

Hat Tip:  Jason Walta

-JH. 

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Comments

I agree. When the same occurred in late 1993, the discussion centered on the "temporary". Where one of the current sitting members notes that the current 2 member situation will continue for the year, it becomes dubious indeed. Understandably, 2 member decisions relect concurrence between 2 members of a theoretical 3 member panel, thus the decision would issue in the "normal" situation. Of course this ignores the "tradition" that supposedly cases are assigned to random panels of 3, and, more to your point, hopefully this current situation was not intended by Congress.

Posted by: JR | Jan 26, 2008 6:38:04 AM

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