Sunday, November 22, 2009

More Support for Two-Member Board Decisions

NLRB Add another court of appeal to the list of those supporting the NLRB's power to issue two-member decisions.  This time it's the Fourth Circuit in Narricot Indus. v. NLRB.  That makes it four courts (1st, 2nd, 4th, and 7th Circuits) to one (D.C. Circuit).  The Fourth Circuit's holding included this analysis of Section 3(b) of the NLRA and the D.C. Circuit's decision (see here for a previous discussion of the provision):

The D.C. Circuit has reached a contrary conclusion, reading § 3(b) as creating distinct quorum requirements for the Board and designated three-member groups. See Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469, 472- 73 (D.C. Cir. 2009). That court thus concluded that the phrase "except that" is "present in the statute only to indicate that the delegee group’s ability to act is measured by a different numerical value." Id. at 472. In the court’s view, the Board quorum requirement of three members "must be satisfied ‘at all times,’" regardless of whether the Board’s authority is delegated to a group of its members. Id. (quoting 29 U.S.C. § 153(b)). We disagree with this view, concluding that it is based on an overly narrow construction of the modifying phrase that directly follows the three-member quorum requirement: "except that two members shall constitute a quorum of any group designated pursuant to [the delegation provision]." 29 U.S.C. § 153(b) (emphasis added). The statutory phrase "except that" ordinarily introduces an exception. Had Congress desired to write the statute as the D.C. Circuit reads it, it would have simply omitted the words "except that" from § 3(b). The statute would then contain two independent quorum clauses, one applicable to the Board and the other to three-member groups. As it is, however, § 3(b) contains a quorum requirement applicable "at all times," except where the Board has delegated its authority to a three-member group. Because the Board made such a delegation in this case, we see the D.C. Circuit’s reading of the statute as unpersuasive.

Now it's just up to the Supreme Court to sort this mess out.

Hat Tip:  Patrick Kavanagh & Dennis Walsh


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