By Edwin S. Hopson
After the June 17, 2010, Supreme Court decision in New Process Steel v. NLRB in which the court invalidated Board decisions issued while there were only two Board Members serving during the period January 1, 2008 to April 5, 2010, the Board announced it would begin reviewing about 100 two-Member Board cases in order to correct the defect found by the court. Both the Supreme Court’s majority and dissenting justices made mention of the fact that the Board had also delegated certain of its authority to the Board’s General Counsel, who acted upon that delegation during the 27 month two-Member Board period. According to the NLRB’s July 8, 2010, press release, the December 2007 delegation had provided “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.”
In order to address any concern over whether the delegation to General Counsel Meisburg was legally effective, the newly constituted five-Member Board on July 7, 2010, according to a Board press release, ratified the December 2007 temporary delegation. The Board stated: “[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. Accordingly, the Board hereby ratifies the court litigation authority of the General Counsel described in the December 28, 2007 delegation.”
In addition, on July 7, 2010, the Board also “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.”
Whether this will lay to rest any challenge to the delegation actions referenced above, or whether there are indeed any outstanding, pending challenges remains to be seen.