Decisions made by the Board following these recess appointments and up until the appointment of a new NLRB board last August are invalid...
Today the United States Supreme Court issued its much-anticipated decision in NLRB v. Noel Canning, finding that President Obama's "recess appointments" to the National Labor Relations Board, when the Senate wasn't in recess, were unconstitutional. For a First Glance at the high court's ruling, we asked attorney Brian Hayes, a shareholder in the Washington, D.C., offices of law firm Ogletree Deakins, for his perspective. Before joining Ogletree, Mr. Hayes was a member of the NLRB:
Q: What does today's NLRB v. Canning decision mean?
Hayes: It means that the President’s recess appointment of three NLRB Members in January of 2012 was unconstitutional. Because the appointments were legally infirm, the decisions made by the Board following these recess appointments and up until the appointment of a new NLRB board last August are invalid.
Q: Who does the decision impact?
Hayes: The unconstitutionality of the appointments directly impacts all of the employees, employers, and unions that were involved in any of the now invalid decisions. It may also indirectly impact parties in other cases which, to some extent, rely on those invalidated cases. Finally, it may directly impact a host of other parties based on Board actions, apart from the issuance of formal decisions. For example, some parties have raised the question of whether the approval of certain of the Agency’s personnel appointments by this Board were proper, and therefore, whether incumbents in these lower level administrative positions are serving lawfully and their official actions therefore valid. This is still an open question.
The unconstitutionality of the appointments directly impacts all of the employees, employers, and unions that were involved in any of the now invalid decisions...
Q: What is expected next?
Hayes: The Board will have to reconsider all of the invalid decisions that return to the Agency. This process will undoubtedly occupy a significant amount of the Board’s time. There is only one holdover Member on the current Board from the Board that originally considered these cases. That means four new Members will have to review each of these cases as completely new matters and the new Board will have to re-decide and re-issue each of these cases after that review.
[Brian E. Hayes is a shareholder in the Washington, DC office of Ogletree Deakins and serves as Co-Chair of the law firm’s Traditional Labor Practice Group. Immediately prior to his joining the firm he was a Member of the National Labor Relations Board. He was confirmed to that post by the United States Senate in 2010 and his term ended in December of 2012.]