Supreme Court Deals NLRB and Administration Another Legal Setback

by Schnader Harrison Segal & Lewis LLP
Contact

The United States Supreme Court yesterday ruled unanimously that three recess appointments made to the National Labor Relations Board by President Obama on January 4, 2012 were an invalid exercise of the power to make recess appointments found in Art. II, §2, cl. 3 of the United States Constitution. National Labor Relations Board v. Noel Canning, No. 12-1281.

Summarizing the view of all nine Justices, Justice Breyer’s majority opinion stated: “we conclude that the President lacked the power to make the recess appointments here at issue.”  Four of the Justices arrived at the same result by a different route, explained in Justice Scalia’s concurring opinion.

This is the second time in the past several years that the Supreme Court has invalidated NLRB action for what might be termed administrative or procedural irregularity.  In New Process Steel v. NLRB, the Court found that action in deciding more than 600 cases by an NLRB with only two sitting members from January 2008 until July 2010 was invalid because the agency lacked a quorum, which it held to be at least three members.

While Noel Canning was decided on constitutional law principles having little to do with the substance of labor and employment law, the potential impact of the Supreme Court’s decision on labor law is substantial.   The fact that three of the five Members of the NLRB were appointed without authority means that from January 2012 until July 2013, the Board lacked the three-member quorum needed to make valid decisions for that eighteen-month period.  One thousand or more decisions were made in that period and are rendered invalid by the Noel Canning decision.

Certainly this means that the Board, which now has a full quorum, will have to re-decide many of the decisions that were invalidated.  Given the similar makeup of the current and invalid Boards, the outcome of many cases may not change on reconsideration.  A particularly pressing question is presented by the dozens of Board decisions that were appealed to one of the federal appellate courts, which largely were stayed while Noel Canning was awaiting decision.  One would expect that the Board would have to reconsider its decisions in those cases on a priority basis.  Further intriguing questions concern the status of regional directors appointed by improperly constituted panels and the fate of cases presently being prosecuted by the General Counsel based on Board decisions that now are invalid.

One thing that is clear is that the Board will have much urgent work to occupy its time simply dealing with the repercussions of Noel Canning.  That could be good news for employers given the Board’s ambitious plans to alter radically the representation election rules and its recent request for briefs from interested parties on what is likely to be an equally radical reworking of the rules on employee use of employer e-mail networks to engage in concerted activity.

Many project that the enormity of the Noel Canning fallout will consume the agency at least through the 2014 elections, after which the Board majority could be up for grabs, depending on the results of the Congressional elections.

 

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.

© Schnader Harrison Segal & Lewis LLP | Attorney Advertising

Written by:

Schnader Harrison Segal & Lewis LLP
Contact
more
less

Schnader Harrison Segal & Lewis LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!