NLRB Will Continue to Decide Cases With Only Two Members

On May 1, 2009, we reported that the Court of Appeals for the District of Columbia Circuit had just ruled that the National Labor Relations Board, which has functioned with only two of its five members since January 1, 2008, had lost its quorum and, as a result, had no statutory authority to issue any of the nearly 400 decisions that were released during the preceding 16-month period. Laurel Baye Healthcare of Lake Lanier, Inc., 2009 U.S. App. LEXIS 9419 (D.C. Cir. 2009).

On May 18, the NLRB issued a press release announcing that, notwithstanding the D.C. Circuit's decision in Laurel Baye Healthcare, Chairman Liebman and Member Schaumber would continue to issue decisions in unfair labor practice and representation cases. The Agency emphasized that two other Courts of Appeal, the First and Seventh Circuits, had upheld the two-member Board's authority to decide cases, and that the issue currently is pending review in seven other circuit courts.