Examining NLRB rulings

published in The Journal Record | February 7, 2013

By Tony Puckett

Employers concerned with recent expansive rulings by the National Labor Relations Board got a significant measure of relief on Jan. 25. The U.S. Court of Appeals for the District of Columbia ruled in Noel Canning Div. v. NLRB that three so-called recess appointments of NRLB members by President Barack Obama were invalid and the NLRB lacked a quorum of the five-member board. The appeals court determined the appointments violated the U.S. Constitution.

The three members were appointed on Jan. 4, 2012, purportedly pursuant to the Recess Appointments Clause of the Constitution. However, the appeals court found that Congress was actually in session as Congress had not recessed from the first session of the 112th Congress but continued to meet in pro forma sessions every three business days from Dec. 20, 2011, through Jan. 23, 2012, and actually acted during a session Jan. 3 to convene the second session of the 112th Congress. The appeals court held that the three appointments didn’t occur during the purported recess, but instead several months earlier.

The court decision means that a year of NLRB decisions may be invalid and must be redetermined. This includes board rulings that changed years of labor law and expanded the reach of the National Labor Relations Act beyond unionized workplaces to non-union employers. Among such decisions are cases on social media policies, confidentiality of personnel investigations by employers, and enforceability of dues checkoff agreements. Rulemaking by the board during this period also may be invalid, including a revised rule to speed up elections on union representation.

Several similar constitutional challenges to the recess appointments are pending in other circuit courts of appeal. The Noel Canning case only affects cases in the D.C. Circuit and will undoubtedly be appealed to the Supreme Court. In the interim, regional offices of the board will continue to investigate unfair labor practice charges, file complaints against employers on such charges, and hold union representation elections. The remaining unchallenged board member, Chair Mark Gaston Pearce, said the board will continue to consider cases.

While employers may ultimately gain relief from the board’s expansive rulings of the past year, businesses would be well-advised in the meantime to take steps to try to comply with board case law and be prepared for unionization campaigns.

This article appeared in the February 7, 2013, issue of The Journal Record. It is reproduced with permission from the publisher. © The Journal Record Publishing Co.