Thursday, June 26, 2014
Supreme Court’s Noel Canning Decision “Cans” Unconstitutional NLRB Appointments – Hundreds of NLRB Decisions Null and Void
Today, the United States Supreme Court invalidated approximately 331 National Labor Relations Board (“NLRB”) decisions. In NLRB v. Noel Canning, the Supreme Court held that the President improperly appointed three NLRB Members on January 4, 2012. The Court’s determination invalidated hundreds of NLRB decisions because the NLRB improperly exercised its powers between January 4, 2012 and August 5, 2013.
The President attempted to circumvent the Senate confirmation process by invoking the Constitution’s Recess Appointment Clause, which allows the President to fill vacancies during Senate recesses. Between December 17, 2011 and January 23, 2012, the Senate only held twice-weekly pro forma sessions, where it conducted no business, including one session on January 3 and another on January 6. When the President appointed three NLRB members on January 4, he created a quorum (at least 3 of 5 Board members) for the NLRB. Without proper appointments, the NLRB lacked a quorum until August 5, 2013, and any intervening decisions were invalid. The Supreme Court determined that: (1) the Senate was in session during those pro forma sessions and (2) recesses of less than 10 days are presumptively too short under the Recess Appointment Clause. The President lacked the authority to make appointments during the three-day recess.
The 331 invalid decisions include some important ones, such as:
(1) Costco Wholesale Corp, which invalidated an employer policy prohibiting employees from making social media statements that could damage the company or other employees’ reputations;
(2) WKYC-TV, Inc., requiring contract dues deduction provisions to continue after a collective bargaining agreement expires; and
(3) Alan Ritchey, Inc., prohibiting an employer from enforcing discretionary discipline on employees of a newly-certified union without giving notice and an offer to bargain. While the decisions will likely not change due to the Board’s current make-up, all 331 decisions now hang in the balance.
The Supreme Court’s ruling also jeopardizes decisions and actions by other recess appointments, including NLRB Member Becker and potentially even federal court judges.
Recent filibuster changes, however, blunt the impact of this decision. All NLRB appointments now likely require approval of 51 members of the Senate.
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of private and public sector labor relations. For more information about the Noel Canning decision or labor & employment law, please contact Pat (pjh@zrlaw.com) at 216.696.4441.