NLRB argues DC Circuit’s quorum ruling “erroneously” departs from Supreme Court precedent, seeks rehearing

The National Labor Relations Board filed a Petition May 28, 2009, in the US Court of Appeals for the District of Columbia Circuit for a rehearing of Laurel Baye Healthcare. In its Petition, the Board argues that the decision is in conflict with decisions of the Seventh Circuit and the First Circuit, which hold that the plain meaning of Section 3(b) authorizes a two-member quorum of a three-member group to issue Board decisions, even when, as here, the Board has only two sitting members. Further, the Board claims the decision erroneously departs from principles that the Supreme Court has previously recognized should govern the construction of the quorum and vacancy provisions applicable to federal administrative agencies. The previous decision was issued May 1, 2009.

Background. In Laurel Baye Healthcare, the court vacated and remanded the Board's Decision and Order, finding that the Board—composed of only two members instead of the required three—was not properly constituted and did not have the authority to issue the order. The court reasoned that the Board's interpretation of NLRA, Section 3(b) violated the "principal of statutory interpretation" by steering clear of various portions of the statutory language. The interpretation by the Board, noted the court, seemed to ignore the requirement that the quorum requirement of at least three members be satisfied "at all times."

The court found that the Board seemed to treat its group quorum requirements and those of a delegee group as mutually exclusive—which was not the case. The language of a delegee group quorum requirement did not do away with the Board's requirement of at least three members; rather, it stated that "only the quorum of any three-member delegee group shall be two." Thus, the court stressed, the Board quorum requirement of a three-member panel still had to be satisfied, irrespective of whether the Board's authority was delegated to a group of its members.

The court concluded that, while the language of the two quorum provisions (those used by the Board to advance its argument) allows for a three-member Board to delegate its powers to a three-member group, and this delegee group can act with two members, it can only do so as long as the Board quorum is "at all times" satisfied—which was not the situation presented in this case. Therefore, in finding that the Board was not properly constituted when it issued its decision, the court granted Laurel Baye's Petition and vacated the decision. The case was remanded to the Board for decision at such time as a proper quorum is established.