More than 400 decisions since January 2008 made by the National Labor Relations Board may be overturned. The Board has been operating with only two members since that time. Under the National Labor Relations Act, the Board may delegate powers to three member groups and this smaller group may act with the approval of only two members. But what if there are only two members on the Board? That is the question now pending.
Several cases decided by the two member Board have been brought before various U.S. Court of Appeals. The issue is did the Board have the right to assign all its duties to a three member group and then continue to operate when the total number of members is reduced to two? These courts have come back with conflicting opinions. Two circuit courts found that while the NLRB does have the power to delegate tasks to groups of three, the total number of Board members must not drop below three. Only one circuit found that “forbidding the NLRB to sit with a quorum of two … would thus frustrate the purposes of the act, not further it.”
Cases challenging this same issue are pending in seven other circuits. Since the split in the circuits is likely to continue, this issue may not be resolved until it is heard by the Supreme Court. Until that time, any NLRB decision may be overturned by this technical issue. Any employer seeking a decision from the Board itself must decide if it wants to accept this uncertainty or try to delay submission of the case to the Board until at least three members are seated. While this is not always in the employer’s control, it is a strategy that should be considered.
While this is a fascinating academic and practical issue, it all may become moot as President Obama has announced intentions to nominate two attorneys to fill the vacancies. If this happens and those nominees receive Senate confirmation, the issue may become academic. Of course, what happens to the 400 decided cases could remain an issue. If the new Board retroactively approves all 400 decisions, the Supreme Court is highly unlikely to address the case and the underlying issue will remain unresolved.
Brody and Associates regularly counsels its clients on all labor-management issues. Should you have any questions, or require any help keeping abreast of the latest labor trends, please contact us at (203) 965-0560 or at info@brodyandassociates.com.
