Kenneth Dolin Published in The National Law Journal
"D.C. Circuit Says Two-Member NLRB Lacks Authority"

Kenneth Dolin's article "D.C. Circuit Says Two-Member NLRB Lacks Authority," was published in the August 31, 2009 issue of The National Law Journal. In his article, Ken discusses a recent decision of the U.S. Court of Appeals for the District of Columbia Circuit, Laurel Baye Healthcare v. NLRB (2009), which held that the National Labor Relations Board (NLRB) lacked the authority to decide cases with only two sitting members, while three other appellate courts have upheld the board's authority. The Laurel Baye case arose out of unfair labor practice charges filed by the United Food & Commercial Workers Union Local 1996. According to Ken, "The D.C. Circuit in Laurel Baye had suggested that a properly constituted board, or Congress itself, could minimize the dislocations engendered by its decision by ratifying or otherwise reinstating the two-member board panel's previous decisions."

The article notes that although President Obama has nominated three individuals to become NLRB board members, these nominations have not yet been confirmed by the Senate. In the meantime, the two-member board has decided that, as a quorum of the board, it will continue to issue decisions and orders. Ken explains, "The board supports its continuing determination to act as a two-member board with the legal opinion that it had earlier sought from the Department of Justice's Office of Legal Counsel, the holdings on this issue from the 1st, 2d and 7th circuits and its belief that the board has an important duty to keep functioning and avoid an indefinite shutdown in its decision-making."

Ken concludes, "Given this conflict between the D.C. Circuit and three other circuits, particularly given the importance of the D.C. Circuit in enforcing board decisions, it is very possible that this issue ultimately will be decided by the U.S. Supreme Court."