More Support For Two-Member NLRB Decisions

The count is now 3-1 in favor of two-member NLRB decisions being valid, following the Second Circuit's recent ruling in support of those decisions in Snell Island SNF v. NLRB.  As a reminder, the D.C. Circuit has held that such decisions are improper, while the First, Second, and Seventh Circuits have approved the decisions.  My Internet access is spotty now, so I can't get into too much detail on the Second Circuit's holding, but it takes more of an administrative law angle.  We've heard the pros and cons view on the law several times now. The Second Circuit acknowledged that both views are reasonable and then deferred to the NLRB's interpretation under Chevron. A sample:

In short, we draw two conclusions about the quorum requirement in section 3(b) of the Act from this discussion of the legislative history of the Taft-Hartley amendments. First, Congress restructured the NLRB to enable it to resolve more disputes, not fewer. As a result, we adhere to our prior observation that one of the purposes of the Taft-Hartley amendments was to increase the NLRB’s efficiency. . . . Second, the legislative history of the Taft-Hartley amendments lacks any clear statement of intent regarding the jurisdiction of a plenipotentiary panel where the Board loses its quorum—the precise question that we face in this case. Where the legislative history touches on the precise question, in Senator O’Mahoney’s floor remarks, Congressional intent is unclear. “If . . . we . . . cannot conclude that Congress has directly addressed the precise question at issue, we will proceed to Chevron step two, which instructs us to defer to an agency’s interpretation of the statute it administers, so long as it is reasonable.” Accordingly, we examine with appropriate deference the NLRB’s interpretation of the Act’s quorum requirement. . . .

In our view, [the Board's view] is a reasonable interpretation of the statute. Indeed, we commend the NLRB for its conscientious efforts to stay “open for business” in the face of vacancies that it did not create and for which it lacked the authority to fill. Of course, the D.C. Circuit’s view that where a Board loses its authority, so does its panels, see Laurel Baye Healthcare, 2009 U.S. App. LEXIS 9419, at *12, is also a reasonable interpretation of the Act. However, in applying Chevron deference, an agency’s “view governs if it is a reasonable interpretation of the statute—not necessarily the only possible interpretation, nor even the interpretation deemed most reasonable by the courts.” Entergy Corp. v. Riverkeeper, Inc., __ U.S. __, 129 S. Ct. 1498, 1505 (2009) (emphasis omitted). Accordingly, we hold that the NLRB panel in this case was a lawfully convened panel of three members. Because of the existence of a two-member quorum, the panel continued to operate in accordance with section 3(b) of the Act after one of its members ceased to serve on the Board and even though the Board itself lost a quorum.

This further supports the Board's decision to apply its nonacquiescence policy and makes the chance for Supreme Court review even higher.  It may also show how the Court would come out.  Justice Scalia, in particular, likes Chevron arguments and one could easily conclude that the two views are reasonable.  What's less clear is whether the Court would hold that Chevron applies, as at times, they've been less willing to defer to agency pronouncements that are not the norm--that is, rather than the NLRB interpreting the substantive provisions of the NLRB, it is deciding its own power, which (I don't think) is necessarily a Chevron case.  Hopefully, we'll have a chance to find out.

Hat Tip:  Patrick Kavanaugh, Dennis Walsh, and others.

-JH