(CN) – The D.C. Circuit on Friday invalidated hundreds of opinions issued by the National Labor Relations Board in 2008, saying the board lacked the three-member quorum required by law.
The National Labor Relations Act originally stipulated that the board would consist of three members, which later amendments expanded to five. The law further specifies that three members are needed for quorum.
When one board member’s term expired, the remaining four members voted unanimously to delegate the board’s power to a three-member group. Their reason for doing so hinged on the expectation that the recess appointment terms of two other board members would soon expire, leaving the board with just two members.
The Justice Department’s Office of Legal Counsel had advised them that “if the board delegated all 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 functioned with two members since Jan. 1, 2008. In February of that year, it found Laurel Baye Healthcare of Lake Lanier in violation of labor law.
Instead of challenging the merits of the finding, Laurel Baye argued that the board lacked the power to delegate its authority to a three-member group and to make decisions without a three-member quorum.
The federal appeals court in Washington, D.C. agreed that the board lacked quorum in 2008.
“The delegee group quorum provision’s language does not eliminate the requirement that a quorum of the Board is three members,” Judge Sentelle wrote.
“The Board quorum requirement therefore must still be satisfied, regardless of whether the Board’s authority is delegated to a group of its members.”
The board’s decision was “undoubtedly born of a desire to avoid the inconvenient result of having the Board’s adjudicatory wheels grind to a halt,” the court noted. “Nevertheless, we may not convolute a statutory scheme to avoid an inconvenient result. Our function as a court is to interpret the statutory scheme as it exists, not as we wish it to be. Any change to the statutory structure must come from the Congress, not the courts.”
The court suggested that the board or Congress could temper the blow “by ratifying or otherwise reinstating the rump panel’s previous decisions, including the case before us.”