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WASHINGTON � Facing paralysis because of vacancies, the National Labor Relations Board recently delegated its authority in two ways that may put its work in a perilous legal position, according to some scholars and litigators. The NLRB, an independent federal agency created by Congress in 1935 to administer the National Labor Relations Act, is governed by a five-member board appointed by the president and confirmed by the Senate. Members’ five-year terms are staggered, and traditionally there are two Democrats, two Republicans and a chairman selected from the president’s political party. The board is currently operating with two members. Although President George W. Bush recently announced three nominations, there may be little incentive for the Senate’s Democratic majority to act on them. In the past several years, the board has come under increasing attack from unions and others who see its decisions as stridently anti-union. And, one of Bush’s three nominations is the renomination of the central target of those attacks � former NLRB Chairman Robert Battista. “Given this is the last year of a two-term president, an election year, and rather extreme rhetoric being used by all interested parties, it seems to me this problem of delegating authority is extraordinarily exacerbated because the current nominees aren’t going to get attended to any time soon,” said John N. Raudabaugh, a former board member and a partner at Baker & McKenzie. The labor statute specifically allows the board to delegate decision-making authority to three-member groups, with two members constituting a quorum. Late last December, with the board chairman’s seat already vacant, the four remaining members, knowing they would lose two more members when Congress adjourned in January, delegated their powers to three of the four. Two of the three-member group � a Republican and a Democrat � would remain in January and be the quorum needed to do business, according to the board, even though the three-member group no longer existed. The board’s second delegation that day was to give its general counsel full authority on its behalf to initiate and prosecute injunction proceedings under sections 10(j), (e) and (f) of the labor act. The board said the delegations were temporary, effective only until it returned to at least three members. The board, through its press office, defended its delegations, saying it had “a continuing responsibility to fulfill its statutory obligations in the most effective and efficient manner possible.” But some question the legal bases for those delegations and warn any actions going forward may be challenged as “ultra vires” or beyond its powers. For the authority for two members to conduct business, the board said it relied on the labor statute and a 2003 opinion by the U.S. Department of Justice’s Office of Legal Counsel (OLC). The statute authorizes the board to delegate its powers to a group of three or more members and, in such cases, permits a quorum of two. The 2003 OLC opinion � issued in response to the board’s 2002 question about operating when three or more seats are vacant � 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.” Labor scholar Jeffrey Hirsch of the University of Tennessee College of Law said that neither the statute nor the OLC opinion seems to address the current situation in which a two-member board will operate indefinitely. “If the authority is not expressly given, it seems to me the default should be it’s just not there,” he said. His colleague, Richard Bales of Northern Kentucky University Salmon P. Chase College of Law, agreed, suggesting the statute’s provision was written to deal with vacancies when there is still a majority on the board, or when one of a three-member group becomes sick or recuses himself because of a conflict. “This raises an issue because this board is issuing decisions,” he said. “Of what legal significance, if any, are those decisions? If I was on the losing end of one, I’d march into circuit court and say there’s no binding precedent, no legal significance, and I might even ask for an injunction.” Management would be the more likely challenger, noted Hirsch, because “delay helps them,” particularly in a union election situation. But former board members Raudabaugh � a George H.W. Bush appointee � and Charles I. Cohen � a Clinton appointee and now partner in the Washington office of Morgan, Lewis & Bockius � said they were more concerned about the delegation of power to the general counsel to seek injunctions for unfair labor practices, most often against employers. Section 10(j) states the board may authorize the general counsel to file a petition for injunctive relief in district court in these cases, which are generally “important and significant” cases, Cohen said. An untested delegation “The board has delegated its function � voting on 10(j) cases � to the general counsel,” said Cohen. “Since by definition these are more significant cases, that’s an untested proposition of law and could be a significant issue.” Raudabaugh agreed, adding, “It’s very possible a general counsel wishing to make law on a particular issue could use the 10(j) power to go forward and do the very thing perhaps he had been limited on previously by the sitting board. This delegation becomes of greater concern the longer time passes without a full board to retake their delegation.” Employers undoubtedly are “very unhappy” about all of this, said labor scholar Charles Craver of George Washington University Law School. “A judge would still have to be convinced circumstances warrant protection. But I could easily see a management lawyer arguing this is beyond the power of the board,” Craver said. Given continuing political turmoil over board appointments, Raudabaugh suggested creating a specialized court to handle all workplace cases. Besides resolving cases more quickly and uniformly, he said, “It would eliminate this real old saw of just constantly dumping on whichever political party controls the board.”

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