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2-Member NLRB lacks authority to issue orders
May 01, 2009 by Ross Runkel at LawMemo
The US Circuit Court for the District of Columbia decided today that the two-Member NLRB lacks the authority to issue orders.
Laurel Baye Healthcare v. NLRB (DC Cir 05/01/2009)
The NLRB has been limping along with only two Members (instead of the normal five Members) since the end of 2007. Near the end of 2007, there were still four Members, and they delegated their powers to a group of three. Everybody knew that only two of those three would be left at the end of the year.
The NLRB's position has always been that the surviving two Members are a quorum of the three to whom powers were delegated.
Laurel Baye argued that the whole thing was a sham. On a more technical level (one that the DC Circuit agreed with), the argument was that the Board's delegation could not survive the loss of a quorum on the Board itself.
So, the whole case gets sent back to the NLRB for a new decision by a quorum.
For more gory details, see Workplace Prof Blog, Two-Member NLRB Decisions Struck Down
Just to make things interesting, Northeastern Land v. NLRB (1st Cir 03/13/2009) recently held that orders from a two-Member Board were lawful.
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