As we noted several months ago , the five-member National Labor Relations Board is facing an operational crisis. Chairman Robert Battista’s term expired on December 16, 2007. Members Dennis Walsh and Peter Kirsanow are serving recess appointments that expire upon the sine die adjournment of Congress in 2007. That will leave only Member Wilma Leibman and Member Peter Schaumber.

While President Bush has the power to fill those vacancies via recess appointments, that is appearing less and less likely. A New York Times story today, entitled, “ Gone for the Holidays, but Leaving a Light on (Got It, Mr. President?) ,” noted:

To prevent recess appointments, the Senate will convene for pro forma sessions throughout the holiday break, with Senator Jim Webb of nearby Virginia presiding over four of them. No other business will be conducted.

So, the formal year-end close of Congress, with the traditional declaration of “sine die,” will fall to Senator Jack Reed of Rhode Island on Dec. 31.

This is consistent with remarks made by Representative Robert Andrews (D-NJ) after last week’s Congressional hearing on recent NLRB decisions:

“This should send a message to the administration—recess appointments are off limits,” Andrews said in an interview after the hearing. “Recess appointments would subvert the role of the Congress.”

Labor leaders, including National AFL-CIO Organizing Director Stewart Acuff, have not been shy about their position on recess appointments, demanding that “the Labor Board be closed for renovations until a new governing board could be appointed by a new President.”

In the event recess appointments are not made to fill the vacancies expected to occur at the end of the current session of Congress and the Board is reduced to two members, it will be in uncertain legal waters. Until recent years, it was assumed that a two-member Board lacked a quorum and could not conduct business or issue opinions. When faced with the prospect of a two-member Board in late 2001, the then three-member Board issued an order temporarily delegating certain authority to the General Counsel that would become effective if the Board dropped below three members. The delegation gave the General Counsel authority to initiate and prosecute injunction actions under sections 10(e),(f), or (j) of the National Labor Relations Act (NLRA) and contempt proceedings to enforce Board orders, to conduct any other court litigation that would otherwise require Board authorization, and to institute and conduct appeals to the Supreme Court. The Board had made a similar delegation in 1993 when faced with the prospect of a two-member Board.

When faced with a two-member Board in August 2005, Chairman Battista announced that it would be legal for the Board to issue decisions with only two members. Chairman Battista cited a 2003 Justice Department opinion reasoning that the NLRA gives the Board the authority to delegate responsibility to three members and when that occurs, two members constitute a quorum. Thus, the Justice Department reasoned, two members of the Board could issue decisions. This legal theory did not have to be tested because President Bush made a recess appointment to the Board (Peter Schaumber, who was later confirmed by the Senate) just days after the Board dropped to two members.