Friday, December 28, 2007
NLRB Delegates Litigation Authority to General Counsel; Declares It Will Issue 2-Member Decisions
Former Chair Robert Battista's term expired December 16; Board Members Peter Kirsanow and Dennis Walsh are serving recess appointments that will expire imminently. That will leave two Members sitting on a five-person Board, and Congress had made it clear that there will be no more recess appointments to this politically charged Board.
In response, the Board today announced two things. First, it will temporarily delegate to the General Counsel authority on all court litigation matters that otherwise would require Board authorization. This delegation will give the General Counsel full and final authority on behalf of the Board to initiate and prosecute injunction proceedings under Section 10(j), or Section 10(e) and (f), of the National Labor Relations Act.
Second, and this one seems to me more-than-a-little suspect, the Board announced that it will delegate its powers to Members Liebman, Schaumber, and Kirsanow. This action will permit Members Liebman and Schaumber, as a quorum of the three-member group, to issue decisions and orders in unfair labor practice and representation cases. The temporary delegations, decided on December 20, 2007 and announced today, will be effective as of midnight tonight. They will be revoked when the Board returns to at least three members.
The Board's authority for the delegation is Section 3(b), which provides:
[t]he Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise. ... A vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board, and three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group designated pursuant to the first sentence hereof.
The Board also cites a March 4, 2003 opinion issued by the Office of Legal Counsel of the U.S. Department of Justice, which concluded that "if the Board delegated all of its powers to a group of three members, that group could continue to issue decisions and orders as long as a quorum of two members remained."
Perhaps I'm missing something here, but the cited authority does not seem to be on point. The statute, for example, answers the question of what happens when there are three members of the Board but one is absent or disqualified. Same with the OLC opinion. Here, however, once Congress goes into recess, there will be only two members of the Board. Kirsanow can't count as one of the three members who can appoint a two-person quorum because he is not (as of Congressional recess) a member.
If I'm right, then everything the Board does between midnight tonight and January 2009 (the earliest that the new president's nominees will be confirmed) may well meaningless.
Here's the Board's press release explaining today's actions.
I can't explain it any better than Rick did. The first issue (delegating to the GC) has happened before, but not the second. The Board had released its opinion that a two-member Board could decide cases the last time that it faced a shortage of members, but it was never tested because more members were finally appointed. I'm with Rick; this doesn't seem to pass muster. I understand their rationale--two members in agreement is all that's necessary in a given case--but I just don't see the legal support for hearing cases with only two members. The past practice has always been for the Board to stop hearing cases (I personally got loaned out in one instance), so no matter it's legality, it's certainly a departure.
Interestingly, the move would help unions and employees right now. Only the most uncontroversial of cases would get both Liebman and Schaumber to sign on and those are the run-of-the-mill ULP cases.
Posted by: Jeff Hirsch | Dec 28, 2007 1:47:49 PM