It's déjà vu for the National Labor Relations Board. With Member Craig Becker's recess appointment set to expire on December 31, the federal agency responsible for conducting union elections and processing unfair labor practice charges must again prepare for the loss of its required quorum. Upon the expiration of Becker's term, the Board's membership will be reduced to two. Given the Supreme Court's decision last year in New Process Steel v. NLRB – in which the Court held that the NLRB's grant of authority depends on a minimum of three members – the Board must again anticipate the loss of its powers under the National Labor Relations Act, and the resulting stagnation of the agency's highest authority.

This problem is not new, and neither is the Board's solution. On Wednesday, the Board published an Order in the Federal Register, delegating two broad areas of authority to the General Counsel. This is the third time the Board has undertaken such a delegation. Faced with a loss of membership in December 2001, the Board published a similar Order, providing the General Counsel with authority over legal proceedings, including the ability to prosecute injunction proceedings under section 10(j) of the Act (federal orders requiring an employer to bargain with a union). Finding itself short of members again the next year, in November 2002, the Board made an additional delegation, this time granting the General Counsel the authority to certify the results of certain secret ballot elections. Both orders specify that these powers come into effect whenever the Board's membership falls below the required three members, and will remain vested in the General Counsel until such time as the Board's minimum membership is again met.