The National Labor Relations Board (“NLRB” or “Board”) has announced (pdf) that it has ratified the General Counsel’s (GC) litigation authority and the Board’s administrative, personnel, and procurement actions taken during the 27-month period when the Board operated with only two acting members. The Board’s ratification does not extend to the unfair labor practice decisions and representation case rulings issued by members Wilma Liebman (D) and Peter Schaumber (R) during that time. It is estimated that from January 2008 through the beginning of April 2010, the two-member panel issued more than 600 Board opinions. In June, the Supreme Court held in New Process Steel that at least three members are needed to exercise the Board’s authority, thus calling into question the legitimacy of the cases decided and other actions taken during that period.

The NLRB’s announcement explains that in 2007, when the Board was anticipating that as of January 2008 it would be operating with only two members, it gave the agency’s GC:

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.

In order to “remove any lingering questions” regarding the GC’s litigation authority exercised during this time, the now five-member Board formally ratified this delegation, explaining: “[a]lthough 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.”

With respect to the two-member Board’s administrative and other actions taken – including but not limited to appointments of regional directors, administrative law judges, and senior executives – the complete Board, “in an abundance of caution” ratified all actions taken and/or approved by the two-member Board between January 1, 2008 and April 5, 2010.

The Board recently explained how it would deal with 96 cases decided during the contested period that have been returned to the agency from various federal courts of appeal.

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