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NLRB losing its quorum?
December 21, 2007 by Ross Runkel at LawMemo
As of January 1 there will be only two Members of the National Labor Relations Board.
Will they be a quorum for conducting business?
The full Board has five Members.
At the end of December 16, the number dropped to four because of the expiration of the term of appointment for Chairman Battista.
At the end of December 31, the terms of Members Kirsanow and Walsh will expire because they are recess appointees who were not approved by the Senate.
That will leave two: Wilma B. Liebman (Democrat) and Peter C. Schaumber (Republican).
So how can two be a quorum? Watch this.
About two years ago, a roughly similar event occurred. There were only three Members, and one of their terms was about to expire. On Aug. 26, 2005, Chairman Battista and Members Liebman and Schaumber delegated to themselves, as a three-member group, all of the Board's powers in anticipation of the expiration of then Member Schaumber's term on Aug. 27, 2005. Pursuant to this delegation, the remaining two Board Members (Chairman Battista and Member Liebman) constituted a quorum of the three-member group with the authority to issue decisions and orders in unfair labor practice and representation cases. This appears to be permissible under Section 3(b) of the National Labor Relations Act.
So, before the year ends, I expect a similar delegation to three Members, with the surviving two becoming a quorum.
And don't look for any recess appointments by the President. The Senate has figured out a way to keep itself in session so there will be no "recess" and the President will not have the chance.
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