Five-Member NLRB Ratifies Certain Actions Taken By Two-Member Board

On 8 July 2010, the newly appointed five-Member National Labor Relations Board announced that is has ratified the General Counsel’s litigation authority and the Board’s administrative, personnel, and procurement actions taken during the 27-month period when the Board operated with only two members. The ratifications were made to remove any lingering questions about certain actions of the two-Member Board created by the U.S. Supreme Court’s recent decision in New Process Steel v. NLRB. The Board’s ratification, however, does not extend to the unfair labor practice decisions and representation rulings issued in the defunct 27-month period.

First, the new Board ratified the December 2007 temporary delegation to the Agency’s General Counsel of all authority on court litigation matters that would otherwise required authorization of the Board. Second, the new Board ratified all personnel, administrative, and procurement actions taken by the two Members during the 27-month period, including but, not limited to, appointments of Regional Directors, Administrative Law Judges, and Senior Executives.

In the 8 July 2010 announcement, the new Board explained:

“Although we believe that the court litigation delegation has always been valid, this ratification is intended to remove any question that has arisen or may arise regarding this delegation. Accordingly, the Board hereby ratifies the court litigation authority of the General Counsel described in the December 28, 2007 delegation.”

The December 2007 delegation gave 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, contempt proceedings pertaining to the enforcement of or compliance with any order of the Board, and any other court litigation that would otherwise require Board authorization.; and to institute and conduct appeals to the Supreme Court by writ of error or on petition for certiorari.

For more information, please view the 8 July 2010 announcement at: www.nlrb.gov.