Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

The NLRB’s announcement explains that in 2007, when the Board was anticipating that as of January 2008 it would be operating with only two members, it gave the agency’s GC:

full and final authority on behalf of the Board to initiate and prosecute injunction proceedings under Section 10(j), or Section 10(e) and (f) of the National Labor Relations Act, contempt proceedings pertaining to the enforcement of or compliance with any order of the Board, and any other court litigation that would otherwise require Board authorization; and to institute and conduct appeals to the Supreme Court by writ of error or on petition for certiorari.

In order to “remove any lingering questions” regarding the GC’s litigation authority exercised during this time, the now five-member Board formally ratified this delegation, explaining: “[a]lthough we believe that the court litigation delegation has always been valid, this ratification is intended to remove any question that has arisen or may arise regarding this delegation.”

With respect to the two-member Board’s administrative and other actions taken – including but not limited to appointments of regional directors, administrative law judges, and senior executives – the complete Board, “in an abundance of caution” ratified all actions taken and/or approved by the two-member Board between January 1, 2008 and April 5, 2010.

The Board recently explained how it would deal with 96 cases decided during the contested period that have been returned to the agency from various federal courts of appeal.

Photo credit:   MBPHOTO, INC.

Section 3(b) of the NLRA provides that “three members of the Board shall, at all times, constitute a quorum of the Board.” It also provides that the “Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise.” The quorum provision, however, stipulates that “two members shall constitute a quorum” of any delegate group. The Board – anticipating that it would be left with only two members when two other members’ terms expired on December 31, 2007, while a fifth seat remained vacant – delegated powers to a three-member group to ensure that the remaining two members whose terms had not yet expired would be able to operate – when they could reach a quorum – as a fully-functioning Board. Since then, nearly 600 opinions have been issued by the two-member Board.

The question raised by a number of appellate courts was whether two members constitute a valid quorum in this instance, or whether three members were still required to give the Board full authority to issue decisions. The Seventh Circuit in New Process Steel upheld the authority of the two-member Board. The Supreme Court in today’s 5-4 opinion reverses and remands that decision, reasoning that “reading the delegation clause to require that the Board’s delegated power be vested continuously in a group of three members is the only way to harmonize and give meaningful effect to all of the provisions in §3(b).” Allowing only two members to act as the Board “dramatically undercuts the significance of the Board quorum requirement by allowing its permanent circumvention. That reading also makes the three-member requirement in the delegation clause of vanishing significance, because it allows a de facto delegation to a two-member group . . .” The Court further explained that if Congress had intended to allow two members alone to act as a fully-functioning Board on an ongoing basis, “it could have said so in straightforward language.”

The Court emphasized that its reading of the delegation clause permits the Board to act in panels of three members, while the quorum provision allows a two-member panel to issue a decision if the third is disqualified. In a press release, (pdf) Board Chairman Wilma Liebman responded to the Court’s decision:

In proceeding to issue decisions in nearly 600 cases where we were able to reach agreement, we brought finality to labor disputes and remedies to individuals whose rights under our statute may have been violated. We believed that our position was legally correct and that it served the public interest in preventing a Board shut-down. We are of course disappointed with the outcome, but we will now do our best to rectify the situation in accordance with the Supreme Court’s decision.

For more information on this decision and its implications, see Littler's ASAP:  U.S. Supreme Court Potentially Invalidates Hundreds of NLRB Decisions by Adam Wit.

 

Section 3(b) of the National Labor Relations Act (NLRA) provides that “three members of the Board shall, at all times, constitute a quorum of the Board.” It also provides that the “Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise.” The Board – anticipating that it would be left with only two members when two other members’ terms expired on December 31, 2007, while a fifth seat remained vacant – delegated powers to a three-member group to ensure that the remaining two members whose terms had not yet expired would be able to operate as a fully-functioning Board. The question is whether two members constitute a quorum in this instance, or whether three members are still required to issue a decision. The legitimacy of more than 400 two-member NLRB decisions now rests with the Supreme Court.

Meanwhile, President Obama’s three NLRB nominees for the remaining seats have been cleared by the Senate Health, Education, Labor and Pensions Committee, but await full Senate confirmation.