Months after the D.C. Circuit struck down President Barack Obama’s recess appointments to the National Labor Relations Board (NLRB), little remains clear at the agency, whose authority at every level is being challenged.
Solicitor General Donald Verrilli Jr. on April 25, 2013, asked the U.S. Supreme Court to review and reverse the Jan. 25, 2013, recess-appointment decision. Meanwhile, there is uncertainty at almost every level of the NLRB as to how much deference for its actions is due.
Pending Supreme Court action, the NLRB is continuing to decide cases as if it’s “business as usual.” The decisions the board made in cases from this year and last year may not be enforceable if the Supreme Court reviews the D.C. Circuit decision of Noel Canning and determines the board does not have a quorum, noted Jonathan Segal, an attorney at Duane Morris in Philadelphia. The Supreme Court announced on June 24, 2013, that it would review the Noel Canning decision in its 2013-2014 term.
Noel Canning does not directly affect Lafe Solomon, the acting general counsel for the NLRB. But Solomon is being attacked in several cases that assert his appointment became invalid at the end of the congressional session in which it was made (2010) and that the four-year appointment was contrary to law governing positions that require Senate approval. If he is found not to have the authority to act, Solomon's decisions for the past several years could be subject to challenge.
Regional Offices’ Authority Challenged
The NLRB’s regional offices continue to contend they have the authority to process representation petitions, conduct hearings and hold elections. They also claim they have the power to continue to investigate unfair labor charges and, when sufficient merit is found, to settle those charges or issue complaints and schedule hearings before administrative law judges, Segal noted. But several employers have filed petitions challenging that authority and asking the D.C. Circuit to halt the NLRB’s prosecution and adjudication of unfair-labor-practice charges in their cases. Those petitions are pending before the D.C. Circuit.
Pending Supreme Court action, the D.C. Circuit has put on hold all appeals on its docket of cases that the NLRB has decided since Jan. 4, 2012. “This period of uncertainty would be limited, of course, if new nominations are confirmed and the NLRB once again has a quorum,” Segal said.
On May 22, 2013, the Senate Committee on Health, Education, Labor & Pensions (HELP) approved the five nominees to the NLRB. Full Senate action on the nominees has yet to occur. “The Senate should debate and confirm all five nominees to ensure a fully functional NLRLB so that workers have the full protection of the law,” said Communications Workers of America President Larry Cohen.
There may be nearly 1,000 invalid board decisions since Aug. 27, 2011, estimated Roger King, an attorney at Jones Day, at a Feb. 13, 2013, hearing of the House Committee on Education and the Workforce. “Noel Canning may also impact the authority of the board’s regional directors, who are responsible for overseeing the board’s 28 regional offices,” King noted.
“Since the early 1960s, the board has delegated its appointment power to the general counsel’s office, allowing the general counsel to appoint, transfer, demote or discharge employees in the board’s field offices. However, each delegation notes that the appointment, transfer, demotion or discharge of any regional director or of any officer in charge of a subregional office shall be made by the general counsel only upon the approval of the board,” he emphasized.
“Following Noel Canning, the board’s interested stakeholders are left to wonder about the validity of virtually all board actions.”
NLRB’s Authority ‘Up in the Air’
“The status of the NLRB’s authority to issue decisions and take certain other actions is very much up in the air for the time being,” Segal said. “During this period it is difficult for employers, unions and employees to make judgments about how to proceed on a day-to-day basis. Further, parties to cases that have been decided by the board will have to wait to have appeals resolved.”
And don’t expect the confusion to be resolved anytime soon. “This confusion will continue for an extended period while the litigation concerning the NLRB’s authority is sorted out in the courts,” Segal said. “This will be true with respect to both the NLRB cases decided to date and—until the Senate confirms appointments of NLRB members nominated by the president—with respect to pending cases in the NLRB’s pipeline.”
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
D.C. Circuit Strikes Down President’s Recess Appointments to NLRB, SHRM Online Legal Issues, January 2013
High Court Asked to Review, Reverse ‘Recess Appointment’ Decision, SHRM Online Legal Issues, May 2013