• May 5, 2011

What might have otherwise been a routine review of the actions of the National Labor Relations Board instead resulted in an opinion from the Eighth Circuit Court of Appeals in which all three members of the panel wrote separately, reflecting a broader national debate over the effect of vacancies on the NLRB.

The case, Osthus v. Whitesell, arose when Whitesell purchased a manufacturing facility in Iowa.  In May 2006, Whitesell began negotiations with the union representing the facility’s production and maintenance workers.  Negotiations eventually broke down, and in April 2009 Whitesell implemented its final offer.  The NLRB filed administrative charges and sought injunctive relief, which was granted by the District Court.  Whitesell appealed to the Eighth Circuit.

As background, in 2007 there was one vacancy on the five-member NLRB, and the recess appointments of two other members were set to expire at the end of the year.  This would leave the Board with only two members, one shy of a quorum.  In response, on December 20, 2007 the four existing members temporarily delegated authority on all court litigation matters to the agency’s General Counsel (instead of requiring case-by-case authorization as had been the practice).   This delegation permitted the NLRB to remain “open for business” despite the lack of a quorum.

On appeal, Whitesell challenged the district court’s jurisdiction over the matter on two grounds.   First, it argued that the NLRB may not delegate its authority to seek injunctive relief in court.  Writing for a two-judge majority, Judge Benton made short shrift of this argument, pointing out that district courts have upheld such delegations for more than 60 years.   Second, Whitesell argued that the delegation lapsed when the Board lost its quorum.  Judge Benton also rejected this argument in the space of a single paragraph. 

What is interesting, however, are the actions of the other two members of the panel.  Judge Colloton concurred in Judge Benton’s opinion, but developed the “textual interpretation” argument that the Board has the right to delegate its authority in much greater detail than Judge Benton.  Chief Judge Riley, however, filed a very lengthy dissent disagreeing with the conclusion that the Board may delegate its authority to the General Counsel, and accusing the majority of ignoring the statutory language and offering no analysis for its decision.   Judge Riley also agreed with Whitesell’s second argument, that even if the original delegation were proper, the Board’s subsequent loss of a quorum precluded the General Counsel from seeking an injunction in this case.

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