On December 20, 2007, four days after the expiration of the term of Chairman Robert Battista (R), the four remaining NLRB members took steps to ensure continuous operation of the NLRB in anticipation of the expiration of two other Board members’ recess appointments on December 31, 2007. The Board temporarily delegated authority on all court litigation matters that otherwise would require Board authorization to General Counsel Ronald Meisburg. This delegation will give the general counsel full and final authority to initiate and prosecute injunction proceedings under Section 10(j), and to enforce or defend Board orders and decisions under Sections 10(e) and (f) of the National Labor Relations Act (NLRA).

The Board also temporarily delegated its decision-making authority to members Wilma Liebman (D), Peter Schaumber (R) and Peter Kirsanow (R) so that Liebman and Schaumber, as a quorum of the three-member group, will be permitted to issue decisions and orders in unfair labor practice and representation cases. The recess appointments of Kirsanow and Dennis Walsh (D) expired with the adjournment of the Senate at the end of year.

The Board acted pursuant to NLRA section 3(b), which permits it to delegate its authority to any three members and stipulates that two members of this group constitutes a quorum. The Board also relied on a March 4, 2003, opinion issued by the U.S. Department of Justice Office of Legal Counsel that concluded that “if the Board delegated all of its powers to a group of three members, that group could continue to issue decisions and orders as long as a quorum of two members remained.” The temporary delegations will be revoked when the Board returns to at least three members.