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D.C. Court Decision Creates National Labor Relations Board (“NLRB”) Upheaval

On January 25, 2013,  in Noel Canning v. National Labor Relations Board, the U.S. Court of Appeals for the District of Columbia ruled President Obama’s use of recess appointments to fill three vacancies on the National Labor Relations Board (“NLRB” or “Board”) was unconstitutional.  Without the recess appointees, the NLRB lacks the required quorum to act.  The decision, therefore, potentially invalidates NLRB decisions going back to August 2011, when a Board member’s term expired leaving the NLRB without the required quorum.  The case also  makes it unclear what authority the NLRB has going forward.  Nonetheless, the NLRB has said it will continued issuing decisions despite the court’s ruling in the Noel Canning case.  

Almost immediately after the decision, several companies that had been under attack by the NLRB indicated they intended to defy the Board.  Prime Healthcare Services, which owns 21 hospitals in California, said it would not follow NLRB rulings mandating the collection of union dues after a collective bargaining agreement had expired or requiring employers to give unions certain materials relevant to internal investigations.  Prime Healthcare has said it is taking the position that all NLRB cases decided after the disputed recess appointments are invalid, even if they were not addressed in the Noel Canning case.  

Similarly, home builder D.R. Horton asked a federal appeals court to void another NLRB ruling on the basis that is was decided after the recess appointments and is, therefore, invalid.  For its part, the NLRB takes the position that the Noel Canning case only applies to the specific NLRB decision at issue in that case and that it will continue to issue rulings as normal.  It does not appear  the NLRB will change its guidance or prosecute complaints differently than it has been over the past few years.

Although the Noel Canning decision offers a defense to current Board action and might  invalidate  all appealed NLRB decisions going back to August 2011, the reprieve likely will be short lived.    President Obama can be expected to appoint NLRB members with similar mindsets to the recess appointees.  If and when future appointees are confirmed by the Senate, the NLRB will likely get back to issuing decisions similar to those from the past several years.  Therefore, cautious employers likely will continue to design policy and make employment decisions that do not conflict with current Board rulings, at least until the recess appointment issue is more exhaustively litigated.

© 2022 Poyner Spruill LLP. All rights reserved.National Law Review, Volume III, Number 43
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About this Author

Kevin M. Ceglowski, Employment and Labor Lawyer, Poyner Spruill, Law Firm
Partner

Kevin represents employers in many areas of labor and employment law, including race, age, gender, religion, national original, and disability employment discrimination claims, wrongful discharge claims, and wage and hour claims. He defends clients before administrative agencies such as the Equal Employment Opportunity Commission, the Department of Labor, and the North Carolina Employment Security Commission, in state and federal courts, and in arbitrations. Kevin also provides guidance to management to ensure employment practices are in full compliance with all...

919-783-2853
David L. Woodard, Employment Litigation Attorney, Poyner Spruill, Law firm
Partner

David practices in the area of employment litigation.  He regularly advises and defends clients in race, age, disability and sex discrimination and harassment cases; reviews handbooks and termination issues; and provides compliance advice on matters of employment law.

Representative Experience

McNeil v. Scotland County - Obtained summary judgment for employer where plaintiff alleged race discrimination and retaliation in violation of Title VII of the Civil Rights Act as well as violation of the Americans...

919-783-2854
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