NLRB Fallout From President’s Unconstitutional Recess Appointments Continues

by Foley & Lardner LLP
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As we noted when the decision was released, the Supreme Court ruled unanimously that the President’s 2012 recess appointments to the National Labor Relations Board were unconstitutional. Two weeks later, the developments from the decision continue to come in.

Officially, the Board has been largely silent. After litigating hard for two and a half years and insisting that the appointments were constitutional, the Board’s official response was a four-sentence press release stating only that it was “analyzing the impact that the Court’s decision has on Board cases in which the January 2012 recess appointees participated.” (Note that this was a far cry from the defiant press release that the Board issued after the D.C. Circuit issued its original opinion in 2013, insisting that the decision “applies to only one specific case” and promising to “continue to perform our statutory duties and issue decisions” despite the ruling that there was no lawful quorum.)

But beyond press releases, the Board is just starting to attempt to triage through the effects of two and a half years of precedent being thrown out. In cases pending before courts of appeals that had been held in abeyance pending the resolution of Noel Canning, the Board has moved to vacate its prior decisions and rehear the cases. This was the same step required in 2010, after the Supreme Court had ruled that the Board was acting unconstitutionally by issuing decisions when just two of the five Board seats were filled. It remains to be seen how much time and effort the Board spends actually reviewing the cases that go back for rehearing or whether the new decisions are effectively rubber stamps of the now-invalidated decisions.

The fallout from Noel Canning is likely to continue in the coming months, as the Supreme Court’s opinion did not answer every question surrounding the actions of the Board after the invalid appointments. In addition to issuing hundreds of opinions, the unconstitutionally appointed Board also took a number of actions starting in 2012 that now come into question. Most prominently, the Board appointed several Regional Directors over the Board’s various regional offices throughout the country. A regional director’s authority comes from the Board, so litigants have started to question whether any decision issued by a regional director appointed by the Board after 2012 was a valid exercise of authority. If the Board not only has to go back and deal with its own decisions that it issued over a 30-month period but also must go back and address every action issued by regional directors, the Board is in for a busy few months (and maybe even years). Stay tuned.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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