Yesterday, the United States Supreme Court declined to hear the employer’s challenge in HTH Corp. v. Frankl, Case No. 11-622 (cert. denied March 26, 2012), to the National Labor Relations Board’s authority to delegate to its general counsel the power to file Section 10(j) injunction petitions in federal court once the Board lost a quorum of members.

The case stems from a petition filed by the Regional Director for Region 20 of the NLRB seeking an injunction under Section 10(j) of the National Labor Relations Act when the Board had only two members. In accordance with the Board’s 2007 delegation of litigation authority to its general counsel, the Section 10(j) petition was approved only by the NLRB’s General Counsel, not by the members of the Board. The employer opposed the petition on its merits but also moved to dismiss the complaint for lack of subject-matter jurisdiction asserting that the Regional Director’s failure to obtain the Board’s approval to file the petition deprived the district court of jurisdiction.

The circumstances surrounding the 2007 delegation of litigation authority to the General Counsel were the same as those addressed in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010), in which the Supreme Court held that the Board could not delegate its powers to a three-member group with one vacancy, and thus had no authority to issue any decisions with less than three Board members. However, the Supreme Court in New Process Steel expressly declined to discuss the legality of the Board’s assignment of litigation authority to the General Counsel:

Our conclusion that the delegee group ceases to exist once there are no longer three Board members to constitute the group does not cast doubt on the prior delegations of authority to nongroup members, such as the regional directors or the general counsel. The latter implicates a separate question that our decision does not address.

In HTH Corp, the Ninth Circuit held that case-by-case pre-filing approval by the Board of Section 10(j) petitions is not mandated by the Act. Moreover, the court held that the Board’s 2007 delegation did not end when it had only two members:

New Process Steel instructs that the Act’s quorum requirement must be satisfied when the Board is acting directly through its members, but does not need to be satisfied for the Board’s earlier exercises and assignments of its authority, made with a proper quorum, to remain valid and in effect.

 

Given that distinction, the Board-member quorum requirement in § 3(b) of the Act has only limited pertinence with regard to § 10(j). As we developed earlier, § 10(j) assigns the Board a “power” but does not mandate the case-by-case involvement of the Board as a multi-member organization in exercising that power. Thus, with respect to the Board’s power to file petitions under § 10(j), it was sufficient that a quorum of the Board in 2007 decided to assign decisions as to individual petitions to the General Counsel.

The Ninth Circuit’s decision was consistent with decisions from the Fourth, Fifth, and Eight Circuits.