What Will the Recent Ruling on the Validity of the NLRB Appointments Mean to You?
Michael G. Trachtman |
That’s the key question. Here’s the only answer: no one knows, and if someone tells you that they do know, they’re either lying or fooling themselves. But the answer could be coming as soon as this Spring.
On January 25, 2013, a federal court in the District of Columbia issued a ruling that invalidated President Obama’s three “recess appointments” to the National Labor Relations Board – an extremely important federal agency whose decisions affects how both unionized and non-unionized employers are required to deal with their employees. The ruling was based on the unprecedented conclusion that “recess appointments,” as they have been typically used, are unlawful. (A “recess appointment” is a controversial tactic historically used by both Democratic and Republican administrations to circumvent the need for congressional approval of presidential appointments to federal agencies.)
The NLRB has five members, and the recess appointments were completed in January 2012. So by arithmetic definition, each NLRB decision since January 2012 had to include at least one vote by an NLRB member who had no right to be there. Are those decisions valid?
It’s an important issue. Companies who have had, or are in the middle of, unfair labor practice proceedings before the NLRB will be directly affected, but the reach of the issue will go well beyond those companies. This NLRB has been extremely activist (some would say fanatical) in its pro-union decisions and its issuance of regulations, and it has changed some of the fundamentals of employer-employee relationships in the process – ranging from employee use of anti-employer social media posts to how union elections are held.
Here’s the most that can be said. The court that issued this ruling is one of eleven federal “Circuit Courts” that sit just below the Supreme Court. Other Circuit Courts could issue contrary decisions in the coming months. The Supreme Court will doubtlessly be asked to decide these issues. If it accepts the challenge, as it likely will, it could expedite proceedings and hear the case as early as April. Or it could delay until the Fall, or even later. The Supreme Court has the power to do what it wants. For example, it could rule that the recess appointments were valid, ending the controversy. Or it could rule that the appointments were invalid, but only NLRB decisions after the Circuit Court ruling are affected. Or it could invalidate virtually everything the NLRB has done since January 2012.
In the meantime, you’ll need to conform with existing NLRB rulings until a final decision emerges. The law remains the law until a definitive ruling saying it’s not the law. If you face an NLRB proceeding, you’ll need to preserve your rights to challenge the NLRB’s actions to the extent those actions are based on post-January 2012 rulings. And don’t try any of this at home – you’ll need guidance through what has now become a hyper-technical minefield.
[author] [author_image timthumb=’on’]https://meainfo.org/app/uploads/2014/10/michael-trachtman.jpg[/author_image] [author_info]Michael G. TrachtmanBusiness Attorney and MEA General CounselPowell Trachtman Logan Carrle & Lombardo P.C.[/author_info] [/author]