Facing the prospect that the five-member National Labor Relations Board could be down to two Members on January 1, 2012, with the expiration of Member Becker’s recess appointment on December 31, 2011, on November 9, 2011, the Board announced that it was delegating to the Board’s General Counsel “full and final authority and responsibility on behalf of the Board to initiate and prosecute injunction proceedings under section 10(j) or section 10(e) and (f) of the 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.”  

After the Supreme Court’s decision in the New Process Steel case last year, it is settled law that the Board cannot delegate its decision making authority in unfair labor practice and representation cases to a Board Member panel of less than three Members.  Thus, there was no mention of any such delegation in the Board’s announcement.

Whether any of the delegations mentioned in the Board’s order will be challenged as happened in New Process Steel, will remain to be seen.