January 28, 2013

Obama's NLRB Appointments "Invalid From Their Inception": Many Recent Decisions May Now Be Void

The National Labor Relations Board, as currently composed, has been effectively stripped of its authority to act — and volumes of decisions rendered by it during 2012 will likely be deemed invalid.


On January 25, 2013, the United States Court of Appeals for the District of Columbia Circuit determined that Obama's three appointments to the Board in January 2012 — Sharon Block, Terence Flynn and Richard Griffin — were unconstitutional. [Canning v. NLRB, 12-1115, 12-1153] Specifically, the court stated, "these appointments were invalid from their inception." The decision was based on the fact that Obama made these "recess" appointments while the Senate was actually in session and further, the vacancies being filled did not arise during any recess of the Senate. As a result, the Board only had two valid members during 2012 — Chairman Pearce and Brian Hayes — which is less than the quorum of three needed to issue decisions and orders.


An appeal to the U.S. Supreme Court is expected. However, if not overturned, the NLRB's recent decisions relating to the following issues (among many others) are in jeopardy:


·       Employers' social media policies

·       National Labor Relations Board's First Social Media Ruling Strikes Down Employer's Policy as Overbroad

·       National Labor Relations Board Issues First "Facebook Firing" Decision

·       Employers' notice and offer to bargain with the relevant union before enforcing employee discipline

·       National Labor Relations Board Issues a Series of Decisions Related to Social Media, Witness Statements and the Ability of Unionized Employers to Discipline Employees in the Absence of a Contract

·       Employers' requests that employees keep investigations confidential

·       Caution! NLRB Finds Unlawful an Employer's Request That Employees Keep Complaints Confidential

·       Survival of dues check off provisions after the expiration of a contract

·       Overruling 50-Year Precedent, NLRB Decides Employers Must Continue Dues Checkoff Post-CBA Expiration 


As it now stands, the Board has only one valid member — Chairman Pearce, whose term expires in August of this year. In response to the Canning decision, he issued a statement indicating that the Board "disagrees with [the] decision and believes that the President's position in the matter will ultimately be upheld." The Chairman also set forth the Board's intention to ignore the court's decision by stating that the Board "will continue to perform [its] statutory duties and issue decisions."

We will continue to keep you informed as this case undoubtedly makes its way to the Supreme Court. In the meantime, if you have any further questions about the impact of this decision on your business, please contact any Faegre Baker Daniels labor and employment attorney.

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