Case is yet another setback for NLRB

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By Randall Schmitz
Dolan Media Newswires

BOISE, Idaho — The U.S. Supreme Court recently slapped President Barack Obama’s hand, so to speak.

In NLRB v. Noel Canning, the court held that Obama’s three “recess appointments” to the National Labor Relations Board in 2012 were unconstitutional, calling into question the validity of hundreds of cases decided between January 2012 and July 2013.

The true effect of the Noel Canning decision is yet to be seen, but it definitely will affect some companies that have cases pending on appeal.

The NLRB is composed of five members and primarily acts as a quasi-judicial group deciding cases alleging violations of the National Labor Relations Act. The board members are appointed by the president to serve five-year terms.

Appointments to the NLRB usually require Senate approval. However, the Constitution’s Recess Appointments Clause permits the president to fill vacancies that may happen during a Senate recess.

On Jan. 3 and 6, 2012, the Senate held pro forma sessions, during which no business was conducted. Between those sessions, on Jan. 4, 2012, Obama appointed three people to the NLRB without Senate approval, invoking the Recess Appointment Clause.

About a month later, the NLRB found that Noel Canning, a soft-drink distribution company, engaged in an unfair labor practice when it refused to enter a collective-bargaining agreement with a labor union. Noel Canning appealed, seeking to set aside the decision because Obama’s members were invalid.

According to Noel Canning, they were not approved by the Senate, and a three-day adjournment is not a long enough period to trigger the Recess Appointments Clause. The company argued that without valid appointments, the NLRB was powerless to act.
The case was appealed to the U.S. Supreme Court. The court confirmed the president’s executive authority under the Recess Appointments Clause to make appointments during both intersession and intrasession recesses for vacancies that first occur during a recess and vacancies that arise before a recess but continue to exist during the recess.

However, the court concluded that Obama’s appointment of the three board members was unconstitutional because recess appointments are only permissible if made during a break of 10 or more days.

Obama’s three appointees were on the board from January 2012 to July 2013, presiding over hundreds of cases. The question now is: What happens to the validity of those decisions?

The board decided more than 500 unpublished opinions and more than 300 published opinions. Of those, more than 100 were appealed to the courts.

It is likely that nothing will happen with the decisions that were not appealed. However, the board will have to re-decide all the cases pending on appeal and has started filing nonoppositions to requests for remand.

It is possible that the board will affirm all of its prior decisions, but the makeup of the board has changed and it is more likely to take a fresh look at each case. That will take some time and will increase the board’s workload, which may significantly delay other pending cases.

The board has not yet issued a statement regarding how it plans to proceed in light of Noel Canning.

Another question that will need to be answered deals with the validity of the 10 regional directors appointed by the illegal board. It is possible that the new board will ratify those appointments.

The Noel Canning decision is another setback to the NLRB, which chose to abandon its notice-posting requirement earlier this year after several appellate courts determined it was invalid.

Randall Schmitz is a trial attorney at Gjording Fouser PLLC, Boise, Idaho.