This is the situation as I understand it;
The NLRB broad is supposed to have five members, (currently has four installed) in 2007 knowing they (Wilma Liebman, Peter Shacumber, Peter Kirsanow and Dennis Walsh ) were going to be short on the board due to term ending, delegated to a group of three members ( Liebman, Shacumber, Kirsanow) the authority to rule on cases to keep them moving.
The third member Kirsanow left the NLRB in January of 2008 leaving the board with only two members, Kirsanow felt when he left the two members were opposite and no decision would be made. Since then over 500 were made except for 60 cases they could not agree on and 60 that would set legal precedent.
Our case had 8 votes that they could not agree on but when pushed they found it in them to agree. After checking with lawyers and the justice department the board felt since congress could not agree on the nominations that they could keep the work flow going. Well haste makes waste.
The court ruled yesterday that “If Congress wishes to allow the Board to decide cases with only two members, it can easily do so. But until it does, Congress’ decision to require that the Board’s full power be delegated to no fewer than three members”
Justice Kennedy along with the new Sotomayor writes saying, “Despite the fact that the statute’s plain terms permit a two-member quorum of a properly designated three-member group to issue orders, the Court holds that the two-member quorum lost all authority to act once the third member left the Board. “
Justice Kennedy feels the board still has quorum even if there is a vacancy despite in the past when their was a vacancy the board to not rule on any cases. It would seem to me the two member group would be quorum as long as there were three on the board, which the three could delegate to the two.
In any case common sense tells you the intent of the language is that decisions are to be made with 5 members and no less then three, if two was acceptable the congress would have said two for the third person not only will break the tie votes but offer yet another view point for the other two to consider.
Remember our case was supposed to set precedent in labor laws including how unemployment would be handled. Liebman and Shacumber made decisions on who was pernamently replaced and who was not, what votes would be counted and what votes would be put shelved only to be taken down again and forced to decide on.
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