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Is 2-Member NLRB authorized to issue orders? Opposite decisions on the same day.
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).
Later today the 7th Circuit came to the conclusion that the two-Member NLRB does have the authority to issue orders.
New Process Steel v. NLRB (7th 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.
Employers have argued that the whole thing was a sham. On a more technical level, the argument was that the Board's delegation could not survive the loss of a quorum on the Board itself.
So now, Circuit Courts are split. The DC case gets sent back to the NLRB for a new decision by a quorum, and the 7th Circuit case gets affirmed.
For more gory details, see Employer Law Report, Two Conflicting Federal Circuit Court Decisions Issued Today Call Into Question all NLRB Opinions Issued in the Past Year and Workplace Prof Blog, Two-Member NLRB Decisions Struck Down
Just to make things interesting, Northeastern Land v. NLRB (1st Cir 03/13/2009) previously held that orders from a two-Member Board were lawful. So the Circuit split is 2-1 in favor of the Board.
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