On November 3, 2011, the NLRB issued an order (http://tinyurl.com/76uhkd3) contingently delegating to the general counsel full authority over court litigation matters that would otherwise require Board authorization and full authority to certify results of any secret ballot election conducted under the National Emergency provisions of the Labor Management Relations Act. The delegation over court litigation matters includes full and final authority to initiate and prosecute injunctions under Sections 10(j), 10(e), and 10(f), as well as to initiate and prosecute contempt proceedings pertaining to the enforcement of, or compliance with, any order of the Board.

The delegation becomes effective if the Board's membership drops below three members. Currently, there are three Board members, Mark G. Pearce (D), Craig Becker (D), and Brian Hayes (R). Unless the Senate approves the recess appointment of Mr. Becker by the end of the current session of Congress, the Board membership will be reduced to two members. With the current political makeup of the Senate, it is unlikely that Mr. Becker's appointment would be approved, especially given the fact that Mr. Becker was a controversial pick in the first place based on his direct ties to organized labor.

The Board's delegation likely is in response to last year's New Process Steel v. N.L.R.B. decision (http://tinyurl.com/7eluz6x) in which the Supreme Court held the Board did not have statutory authority to act with only two Board members. The New Process Steel decision invalidated approximately 600 cases that were decided by a two-member Board.

While the Board has previously delegated such authority to the general counsel in orders dated December 14, 2001, and November 19, 2002, it is unclear whether this delegation would be upheld if challenged. Given the decision in New Process Steel and the Board's stance that its most recent order relates to “internal management” of the Board and is, thus, exempt from normal notice requirements, any significant actions taken pursuant to this latest delegation likely will result in future court challenges.