As we predicted recently, the National Labor Relations Board, which will soon have only two Members, has delegated authority to those two Members to continue to rule on unfair labor practice and representation cases. The delegation is based on the argument that, because the NLRA grants the Board authority to delegate cases to three-Member panels, two Members can constitute a quorum. The action is effective at midnight tonight and will dissolve when the Board again is comprised of at least three Members.

Although the Board made a similar delegation in 2005, that action was not challenged because a third Member was recess appointed by President Bush within a few days. This time, however, recess appointments seem unlikely. In light of labor’s expressed desire to see the Board “closed for renovations,” such a challenge to the Board’s continuing operation may come from those in the union movement.

Of course, the two remaining Members – Wilma Leibman and Peter Schaumber – rarely see eye-to-eye on controversial issues, so it is unlikely that any but the most routine cases will be decided for the foreseeable future.

The Board also delegated to the General Counsel the full and final authority to initiate and prosecute injunction proceedings under Section 10(j), or Section 10(e) and (f), of the NLRA.