Noel Canning Implications Of Mandatory Bargaining Of Discretionary Discipline

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In January, the Supreme Court will hear oral arguments on NLRB v. Noel Canning. Over 700 cases could potentially be impacted with the Court's decision. Though Noel Canning deals with somewhat esoteric questions—whether the President's recess appointment power may be exercised during a recess that occurs within a session of the Senate, among other questions—its outcome will have very real and practical implications.   

One such implication will be whether discretionary discipline is a mandatory subject of bargaining. In 2012, overturning years of NLRB precedent, the Board found that "like other terms and conditions of employment, discretionary discipline is a mandatory subject of bargaining and…employers may not impose certain types of discipline unilaterally." Alan Ritchey, Inc., 359 NLRB 40 (2012). Alan Ritchey was decided by a three member panel comprised of Chairman Mark Pearce and Members Richard Griffin and Sharon Block.

In Noel Canning v. NLRB, the DC Circuit invalidated President Obama's January 2012 invocation of his recess appointments power to name three members to the NLRB, among them Griffin and Block. In theory, the Court's ruling should invalidate all the decisions the Board made in 2012, when the three members were on the Board, since the DC Circuit is a venue option for any respondent losing before the Board. As a practical matter, Noel Canning has less reach since it affects only one order and is binding precedent only in the DC Circuit. In fact, the NLRB continues to hear and decide cases regardless of the Noel Canning decision.

Should the Supreme Court uphold Noel Canning, then Alan Ritchey, and cases decided by members appointed under the President's intrasession recess appointments, would become invalid—a total of nearly 765 cases. Accordingly, there would be no duty to bargain discretionary disciplines. See Fresno Bee, 337 NLRB 1161 (2002) (finding discretionary discipline is not a mandatory subject of bargaining, but overruled by Alan Ritchey). 

There is a slim possibility, however, that the Supreme Court will not hear the case. In July 2013, the Senate confirmed five members to the NLRB and has since been operating with a full slate of confirmed members. Accordingly, the Solicitor General could ask the Supreme Court to remand the case to be decided by the current Board. Similarly, the Justice Department could ask other circuit courts with recess appointment cases to remand to the Board for rehearing. Despite the new Board being bi-partisan, though, it is unlikely most of these cases would be decided differently since the majority continues to be Democrat, as it was with the recess appointments. In other words, a remand for rehearing would likely result in Alan Ritchey being similarly decided.

Until the Supreme Court delivers a decision in Noel Canning—expected mid-2014—employers currently facing NLRB proceedings with Alan Ritchey implications should carefully decide whether to disregard the Board's precedent in cases such as Alan Ritchey. As a matter of course, though, employers should take steps to object to the Board's authority to bring charges if they were instituted prior to the relevant time frame under Noel Canning or if the Director of the regional office bringing the charges was appointed by a Board deemed invalid—18 of 28 Regional Directors may be subject to such a challenge. Similarly, if a regional office or ALJ gives precedential weight to a post-January 4, 2012-pre-July 2013 Board decision, the employer should take the position that such Board decision is invalid and non-precedential. Where procedurally appropriate, employers should raise the issue in petitions, complaints, unfair labor practice charges, appeals, and subpoenas if issued by relevant Board members.