For more than a year, the five-person National Labor Relations Board has been understaffed, leaving just two members to issue decisions and orders in unfair labor practice and representation cases.
The two sitting NLRB members, Wilma Liebman and Peter Schaumber, have issued hundreds of decision since January 2008, when two colleagues left the board at the expiration of their appointments. There have been no replacements since then, but President Barack Obama has nominated two lawyers to the NLRB.
Now, a federal appeals court today has thrown into question decisions made by the two-member NLRB after finding a board ruling invalid because the two sitting members did not constitute a quorum. The U.S. Court of Appeals for the D.C. Circuit had held in abeyance other NLRB cases pending its decision in Laurel Baye Healthcare of Lake Lanier v. NLRB, a closely-watched case among lawyers in the employment law bar.
The D.C. Circuit ruled the NLRB decision is “without force” because the board required at least a three-person panel. The board found management at Laurel Baye, a nursing home, committed unfair labor practices. On appeal, lawyers for Laurel Baye did not challenge the merits of the ruling but instead argued the board lacked the power to issue a decision at all. The D.C. Circuit vacated the NLRB decision and remanded to the board for further review once a quorum is reached.
At issue is whether the NLRB must sit in three-member panels or whether two members will suffice. NLRB lawyer Ruth Burdick said in court in December that Congress gave the NLRB broad discretion in delegating its power. Burdick said there is a general rule for a three-person group and an exception for a two-member quorum. Constangy, Brooks & Smith partner Charles Roberts III, who represented Laurel Baye, argued the NLRB cannot intentionally refashion itself into a two-person board.
Chief Judge David Sentelle wrote for the appeals court panel, which included Judge David Tatel and Senior Judge Stephen Williams. Sentelle acknowledged the court’s decision does not follow a ruling in the U.S. Court of Appeals for the 1st Circuit, which found in March that a decision rendered by a two-person NLRB was legal.
Sentelle addressed the disagreement among the circuits, saying “the First Circuit’s decisions are not binding precedent upon us. We are bound only by the decisions of our circuit and the Supreme Court. This is in keeping with the Supreme Court’s recognition that each court of appeals has a duty to resolve the rules independently of each other.”