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Decision by two-member quorum of NLRB was lawful
March 18, 2009 by Ross Runkel at LawMemo
The NLRB, by statute, should have five Members. Currently it has only two. This is because they serve limited terms, and some terms expired, and the nomination-confirmation process broke down.
Back in December 2007, when there still were four Members, they knew the number would soon drop to two. What to do? The four formally delegated the power to decide cases to three Members. Of those three, two are remaining.
So, is there a legal quorum?
Argument in favor: The statute expressly gives the Board the power to delegate to a panel of three, and two of those three makes up a quorum.
Argument against: Two can be a quorum of a panel of three, but there was no panel of three.
The 1st Circuit unanimously ruled in favor of the NLRB in Northeastern Land v. NLRB (1st Cir 03/13/2009). [The identical issue is still pending decision in the DC Circuit: Laurel Baye Healthcare v. NLRB, Docket Nos. 08-1162 and 08-1214.]
In Northeastern Land the employer petitioned for review of the NLRB's decision that the employer violated section 8(a)(1) of NLRA by maintaining an overbroad confidentiality provision and discharging an employee for violating it. The 1st Circuit enforced the order.
The court reasoned that the plain text of the statute favored the NLRB's position:
Section 3(b) "The Board is authorized to delegate to any group of three ... all of the powers ... and three 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 ... ."
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