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|The two Members of the National Labor Relations Board from December 28, 2007 to April 5, 2010.|
Anticipating a loss of two members when Congress adjourned in January 2008, a four-Member Board, consisting of Members Wilma B. Liebman, Peter C. Schaumber, Peter N. Kirsanow, and Dennis P. Walsh, unanimously decided on December 27, 2007 to temporarily delegate the Board's powers to Members Liebman, Schaumber, and Kirsanow. This action permitted Members Liebman and Schaumber, as a quorum of the three-member group, to issue decisions and orders in unfair labor practice and representation cases. The delegations became effective at midnight, December 28, 2007. The temporary delegations will be revoked when the Board returns to at least three members. In announcing the delegations, the Board stated that it has "a continuing responsibility to fulfill its statutory obligations in the most effective and efficient manner possible."
The Board acted pursuant to Section 3(b) of the Act, which provides that
[t]he Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise. ...A vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board, and three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group designated pursuant to the first sentence hereof.
In addition to the statutory language, the Board relied on the legal analysis and U. S. Circuit Court precedent set forth in the March 4, 2003 opinion issued by the Office of Legal Counsel of the U.S. Department of Justice (OLC) in response to the Board's May 16, 2002 request for OLC's opinion whether the Board may issue decisions during periods when three or more of the five seats on the Board are vacant. OLC's opinion concluded that "if the Board delegated all of its powers to a group of three members, that group could continue to issue decisions and orders as long as a quorum of two members remained."
The Board has historically relied on this reasoning where one member of a three-member Board is disqualified or recused from participating on the merits of a case. The Board also noted that OLC's opinion does not distinguish between decisions that were pending at the time of the delegation of authority to the three-member Board and decisions that are submitted to the Board after the delegation and the departure of the third member.
On June 17, 2010, a divided Supreme Court ruled in New Process Steel vs. the NLRB that the two-member Board lacked the authority to decide cases. Click here for more information.