President Bush Announces His Intention to Recess Appoint Peter C. Schaumber to the NLRB

On August 31, President Bush announced his intention to recess appoint Peter C. Schaumber, of the District of Columbia, to be a Member of the National Labor Relations Board, for the remainder of a five-year term expiring on August 27, 2010.

Schaumber's first term expired this past Saturday, August 27. With that expiration, the Board was reduced to just two Members. As reported in the Daily Labor Report, the Board had announced that it would take the unprecedented action of issuing decisions with only two Members. By recess appointing Schaumber, the President avoids potential litigation over whether the Board has statutory authority to issue two-Member decisions.

The White House's announcement appears here.

Here is a post that compares the voting records of Member Schaumber and his Republican colleagues.

UPDATE:
The Board issued one case with a two-Member Board. In Bon Harbor Nursing & Rehabilitation Center, 345 NLRB No. 55 (2005), a two-Member Board granted the General Counsel’s motion to strike a letter, filed by the respondent, attempting to inform the Board of new authority that came to the respondent’s attention after having filed its brief. The Board generally allows a party to file a letter calling the Board’s attention to “pertinent and significant” authorities that come to the party’s attention after having filed a brief. The two-Member Board found that the authority cited in the respondent’s letter, a Regional Director’s decision not to issue a complaint, was not a “significant” authority. Consequently, it granted the motion to strike.

In a footnote, the Board provided its rationale for concluding that it had statutory authority to issue the decision with just two Members:

On August 26, 2005, Chairman Battista and Members Liebman and Schaumber delegated to themselves, as a three-member group, all of the Board’s powers in anticipation of the expiration of then-Member Schaumber’s term on August 27, 2005. Pursuant to this delegation, the remaining Board members constitute a quorum of the three-member group. As a quorum, Chairman Battista and Member Liebman have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act.

Id., slip op. at 1 fn.1.

It is highly unlikely that a court of appeals will ever review the Board’s two-Member decision. The order striking the letter likely is not “a final order of the Board granting or denying in whole or in part the relief sought” over which a court would have jurisdiction. See 29 U.S.C. § 160(f) (emphasis added).

Assume that the Board later issues a decision finding that the respondent committed unfair labor practices and orders the respondent to take certain action without mentioning the Regional Director’s decision that the respondent wished the Board to consider. Assume further that the respondent petitions a court of appeals for review of that final order, arguing that the Board erred in refusing to consider the Regional Director’s decision and that it lacked the statutory authority to issue the two-Member decision granting the General Counsel's motion to strike. I think that a court would likely find it unnecessary to pass on the Board’s statutory authority to issue a two-Member decision under these circumstances. A Regional Director’s decision not to issue a complaint is not reviewable by the Board and does not constitute controlling law before the Board. A court very likely would not refuse to enforce a Board order merely because the Board failed to reconcile its decision with a Regional Director’s refusal to issue a complaint on similar facts. Therefore, even assuming that the Board lacked statutory authority to grant the GC’s motion to strike the respondent’s letter, it would not affect the outcome of the case and a court need not address the issue.

UPDATE:
As reported in the Daily Labor Report, the two-Member Board also issued three unpublished orders in representation cases.