http://www.law.com/jsp/article.jsp?id=1202429146644&st_Circuit_Issues_First_Ruling_to_Uphold_Authority_of_VacancyRiddled_NLRBMarcia Coyle
The National Law Journal
March 18, 2009
With numerous challenges waiting in the wings, the 1st U.S. Circuit Court of Appeals has issued the first ruling to uphold the authority of a vacancy-riddled National Labor Relations Board to make decisions by only two of its five members.
An estimated 60 to 70 challenges have been filed to two-member board decisions. One challenge recently was argued and is pending decision in the U.S. Circuit Court of Appeals for the District of Columbia. That circuit has put other challenges on hold pending its decision in Laurel Baye Healthcare v. NLRB, nos. 08-1162; 08-1214.
The NLRB, when fully constituted, has five members. In December 2007, a four-member NLRB, anticipating the imminent decrease in its membership to just two members because of term expirations, announced that it was delegating its powers to three members. That action, it said, would permit two members, as a quorum of the three-member group, to issue decisions and orders in unfair labor practice and representation cases. The three-member group no longer existed after the expiration of one member's term in January 2008.
Nearly all of the board's 300 decisions in 2008 were made by two members.
In the 1st Circuit ruling, a three-judge panel unanimously held that the delegation of authority by the board was lawful under the "plain text" of section 3(b) of the National Labor Relations Act. Northeastern Land Services v. National Labor Relations Board, No. 08-1878 (1st Cir.).
NLS had appealed a two-member board decision holding that the company had violated Section 8 of the National Labor Relations Act by maintaining an overbroad confidentiality provision and by discharging an employee for violating it.
FULL story at link.
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