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First circuit appeals court upholds two-member quorum of NLRB

First circuit appeals court upholds two-member quorum of NLRB
Source: Jackson Lewis LLP. Reproduced with permission. Copyright © 2009, Jackson Lewis. Originally published by Jackson Lewis, LLP, at http://www.jacksonlewis.com/ All rights reserved.

In a case of first impression, the U.S. Court of Appeals for the First Circuit upheld the National Labor Relations Board?s authority to issue decisions by a two-member quorum. Northeastern Land Servs. Ltd. d/b/a NLS Group v. NLRB, No. 08-1878 (1st Cir. Mar. 13, 2009).

The Board has been operating with two members since January 1, 2008, and faces additional challenges to the two-member quorum in cases pending in the District of Columbia Circuit, Laurel Baye Healthcare of Lake Lanier Inc. v. NLRB. , as well as in a growing number of others, including the Second Circuit (New York), the Seventh Circuit (Chicago), and the Eighth Circuit (St. Louis).*

NYPPL Comment: The Second Circuit allows a two-member arbitration panel to resolve the matter notwithstanding the resignation of the third member of the panel. See Zeiler v Deitsch, CA2, 500 F.3d 157.

In G&G Shops, Inc. v NYC Loft Board, a New York State Supreme Court, decision not officially reported, the court considered another aspect administrative due process: the substitution of a hearing officer during an administrative proceeding. The initial hearing officer conducting a hearing involving G&G resigned during the course of the hearing. A second hearing officer was appointed and continued the hearing, eventually issuing a determination on a record that included the testimony heard only by the original hearing officer. G&G attempted to have the second hearing officer's determination overturned.

The court ruled that there was nothing "illegal" with the second hearing officer continuing rather recommencing the hearing "so long as the officer who makes the decision reviews all the evidence." The decision points out that "since staff turnover is to be expected, the rule suggested by [G&G] could result in days of wasted time on each case previously considered by the [first] hearing officer..." commenting that "so long as an adequate record is kept, there is no logical reason why a second hearing officer cannot take over the cases of his or her departing colleague."

* In addition to addressing the quorum issue, the First Circuit Court affirmed the Board?s decision holding that the employer, a temporary employment agency, violated the National Labor Relations Act by using an overbroad confidentiality agreement and terminating a temporary employee for violating that agreement.

Full post as published by New York Public Personnel Law on February 08, 2010 (boomark / email).