The NLRB once again prepares to lose a quorum

Russ Samson Iowa Employment & Labor Law Dickinson Law Firm Des Moines Iowa

Posted on 12/15/2011 at 12:06 PM by Russell Samson

On December 14, 2011, in anticipation of the loss of the third member a loss which will reduce the National Labor Relations Board to two individuals the NLRB published a final set of rules amending 29 C.F.R. Part 102, entitled “Special Procedures When the Board Lacks a Quorum.”  The National Labor Relations Board is statutorily composed of five persons appointed by the President and subject to Senate approval.  Lately, a number of nominees to the Board have either failed to be confirmed, or have been appointed on a “recess” basis which significantly limits the length of their appointment.  In 2007, the members of the Board recognized that the Board would shrink to two members due to the expiration of both regular and “recess” appointments.  The Board delegated its functions to three members, knowing one of the members’ term would expire in a matter of weeks. That action was an attempt to give the remaining two members status as a quorum of the three person subgroup.  In New Process Steel, LP v. NLRB, 130 S. Ct. 2635 (2010) , the United States Supreme Court ruled that a two-member National Labor Relations Board  cannot not constitute a quorum of the five member board and has no authority to issue decisions. In December 2011, the NLRB faces a problem similar to that of late 2007.  In April 2009, President Obama nominated three individuals to fill the vacancies on the NLRB.  After inaction by the Senate (which at the time had a theoretical “filibuster proof” Democratic majority), President Obama “recess appointed” his two Democratic nominees – Craig Becker and Mark Gaston Pearce.  The Senate eventually confirmed Pearce to a full term – one that will expire in August 2013 – and confirmed nominee Republican Brian Hayes to a term which will end on December 16, 2012.  Becker remained a “recess appointee” whose appointment ends on December 31, 2011.  While there were, for a short time, five persons appointed to the NLRB, the term of one Republican expired in August 2010, and the term of one Democrat expired a year later in August 2011.  The expiration of Member Becker’s recess appointment will drop the roster of the Board to two. Under the NLRB’s new “final” rule issued on December 14, 2011, when the Board lacks a quorum, all motions for default judgment, for summary judgment or for dismissal are to be referred to the Board’s Chief Administrative Law Judge based in Washington, D.C.  Rulings by the Chief ALJ on such matters cannot be directly or immediately appealed to the Board.  However, under the new rule, if once the Board regains the statutory quorum the underlying matter is reviewed by the Board as part of an appeal, and if an exception to the underlying ruling or order by the Chief ALJ is included in the statement of exceptions filed with the agency, the Board will review the ruling of the chief ALJ. The newly promulgated rule also provides that any request for special permission to appeal  which is pending when the Board loses the statutory quorum (i.e., loses its third member), or which is filed when there is no quorum, is to be referred to the Chief Administrative Law Judge in Washington, D.C., for ruling.  Those rulings by the Chief ALJ are also not immediately appealable directly to the Board.  Rather, if exception is taken to the ruling or order as part of a “regular appeal” of a decision of an administrative law judge in the underlying action, the Board will “consider” it.   If one stops to consider the efficacy of an “after the fact” appeal of an order denying some kind of interim relief one is not too surprised by the observation in the Notice published in the Federal Register that, “In addition, the Board anticipates that, as in some cases the parties will determine that no exception is warranted, these revisions may serve to reduce the backlog of cases that the Board will face when a quorum is restored.” Finally, the new rules include a provision that administrative and procedural requests normally filed with the Office of the Executive Secretary for decision by the Board prior to filing a request for review or exceptions are to be filed with the Executive Secretary for ruling. Once again, the new rules provide that the Executive Secretary’s ruling on such matters cannot be immediately appealed to the Board itself, but can be considered by the Board (once it returns to a quorum) if raised by a party in its actual request for review or exceptions.  Given the contentious nature of not just appointments to the NLRB itself in recent years, but the apparent inability of the Senate to get much of anything done, it is probably reasonable to anticipate that the number of members of the Board will fall below the statutory quorum.  In theory, things will not stagnate – appointed “staff” will make decisions.  It may be noteworthy that President Obama also appointed current Acting General Counsel Lafe Solomon to his position, pending action by the Senate on Solomon’s nomination.  Solomon’s division is responsible for the prosecution of alleged violations of the National Labor Relations Act. And the lack of a quorum does not keep the Board’s recent rule – adopted by a 2 to 1 vote – requiring paper and electronic notices to employees of their rights under the NLRB from going into effect January 31, 2012.  A copy of the Employee Rights poster is available here.    Further information about the poster and the jurisdiction of the NLRB is provided by the Board in an FAQ document available here.

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