(CN) – The status of about 400 opinions issued by the National Labor Relations Board since 2008 remains murky after two federal appeals courts on Friday handed down contradictory rulings on the validity of those decisions. The debate centers on whether the two-member board lacked a three-member quorum.
The board is supposed to have five members, but it has been operating with three vacancies since 2008, after Democrats in Congress refused to ratify former President George W. Bush’s nominations, which they considered too corporate-friendly.
The National Labor Relations Act stipulates that the board needs a three-member quorum to issue opinions and orders.
When one member’s term expired in December 2007, the remaining four members delegated the board’s power to a three-member group, knowing two more members’ terms were set to expire.
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 validity of opinions issued by the two-member board since Jan. 1, 2008 came before the D.C. Circuit and the 7th Circuit, which ruled almost simultaneously on the issue.
The D.C. Circuit held that the board lacked the quorum established by the National Labor Standards Act. It acknowledged that its decision would be highly disruptive, but suggested that the board or Congress temper the blow “by ratifying or otherwise reinstating the rump panel’s previous decisions.”
The 7th Circuit decided the opposite, citing a 9th Circuit finding that the board can operate with two members if there’s a resignation or vacancy in a three-member panel. It rejected a steel company’s claim that the two-member panel that ruled against it never consisted of a proper three-member panel.
The Chicago-based 7th Circuit said the law “contains no requirement about whether a vacant Board member needs to have heard evidence or participated in a decision in order for the quorum requirement to apply.”
The rulings cast doubt on about 400 opinions issued over the past 16 months by board Chair Wilma Liebman, a Democrat, and fellow board member Peter Schaumber, a Republican.