Advertisement

April 23, 2014

NLRB Recess Appointments Ruled Invalid

In a case with far-reaching implications both prospectively and retroactively, the D.C. Circuit Court of Appeals ruled on January 25, 2013, in Noel Canning v. NLRB, that President Obama's recess appointments of Sharon Block, Richard F. Griffin, Jr. and Terence Flynn to the National Labor Relations Board in January 2012 are invalid. This ruling not only calls into question the validity of all NLRB decisions since the recess appointments were made, but also casts into doubt the NLRB's authority to act going forward.

Under the Supreme Court's 2010 decision in New Process Steel, the NLRB cannot function without at least three validly-appointed members. Currently, the NLRB has only three members, two of whom received the recess appointments just ruled invalid in Noel Canning. Former Member Brian Hayes' term expired in December, 2012, and Member Flynn, who was recess appointed in January 2012, resigned in May, 2012 amid allegations that while a staff lawyer with the NLRB, he leaked confidential information to outsiders. Thus, as a result of the D.C. Circuit's ruling, only Chairman Mark Gaston Pearce has a valid appointment, leaving the NLRB well short of the quorum required.

On Friday, Chairman Pearce issued a statement strongly disagreeing with the decision, noting that other cases raising the same issues are currently pending in other circuit courts of appeal and expressing his view that the Noel Canning decision only applies to the specific facts of that case. It is anticipated that the NLRB will appeal the D.C. Circuit ruling to the Supreme Court in the very near future.

If the ruling in Noel Canning stands, the NLRB's controversial rulings since January 2012 involving issues of social media policies, confidentiality of investigations, communications with outsiders, at-will policies and the like, which we have reported on throughout the year, would likely be invalidated. Moreover, the NLRB's authority to render decisions or to adopt rules going forward will also be in question.

We will continue to monitor developments closely and report on them as they occur.

© 2014 Schiff Hardin LLP

About the Author

Partner

Henry W. Sledz Jr. concentrates his practice in representing management, encompassing all aspects of employment law, from labor agreement negotiations and arbitrations to litigation before numerous state and federal courts and agencies. This includes a particular emphasis on food and dairy industry clients.

Mr. Sledz also has significant experience in public sector labor law, representing villages, school districts, colleges and universities in labor negotiations, arbitrations and general counseling.

312.258.5525

Boost: AJAX core statistics

Legal Disclaimer

You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's  Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only. Any legal analysis, legislative updates or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys or other professionals or organizations who include content on the National Law Review website. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor.  

Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals. The National Law Review is not a law firm nor is www.NatLawReview.com  intended to be  a referral service for attorneys and/or other professionals. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional.  NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us. 

Under certain state laws the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.

The National Law Review - National Law Forum LLC 4700 Gilbert Ave. Suite 47 #230 Western Springs, IL 60558  Telephone  (708) 357-3317 If you would ike to contact us via email please click here.