Your Rights as an Employee: Wiping the NLRB Slate Clean?

Your Rights as an Employee: Wiping the NLRB Slate Clean?
The Impact of NLRB v. Noel Canning – Part 2

On June 26, 2014, in the case of National Labor Relations Board v. Noel Canning, the U.S. Supreme Court declared the recess appointments to the NLRB made by President Obama to be invalid. This means that for the period between August 5, 2013, and January 4, 2013, the NLRB was acting without a quorum. Its decisions during that period are arguably invalid as well. It is safe to describe the Noel Canning aftermath as an uncertain mess.

There are the more than 1,000 decisions that were issued by the NLRB during the relevant 19-month time period. Approximately 98 are still on appeal, and almost all of those decisions will have to be vacated and reheard by the NLRB. It is unclear what will happen to the rest of the decisions, depending in large part on how many employers and employees who were adversely affected want to have their cases reopened one or two years after the fact, especially given that most of what the NLRB ordered them to do at the time will have long ago been put into effect.

There is now a fully constituted five-member NLRB, three of whom are Democrats, so reopening a case would mean betting that the new Democratic members would reach a different conclusion than the invalidated recess appointees. For this reason, most believe that if the cases were sent back to be reheard, the original decisions would simply be affirmed in most cases.

During the 19-month period in question, the NLRB’s regional directors also made many decisions. The status of those decisions is also unclear The NLRB has yet to take a public stance on this topic, but if actions at the regional level are also subject to challenge, then a real Pandora’s Box of prior cases will be opened.

Each NLRB decision sets a precedent that employers and employees look to in making workplace decisions. During the relevant 19-month period, several very important NLRB precedents were set. It appears now that those decisions have now been set aside. This leaves employers in an unenviable position; should they now follow the state of the law before January 4, 2012, or should they instead take into account the subsequent invalid decisions on the assumption that the NLRB will eventually revalidate those decisions?

Politics and practicality play into this question as well. Given the workload of the NLRB, it is uncertain when and how— not to mention whether—they will be able to reestablish the lost precedents. In any event, it is bound to take a considerable amount of time to do so. And if that is the case, there is no telling what the future makeup of the NLRB will be. The term of one NLRB member is set to expire in December 2014, meaning the board will be left in a potential Two Democrat/Two Republican deadlock. If a third member cannot be confirmed during the term of the current administration, it could be a long time before new decisions and rules are handed down, and the political composition of the NLRB may have changed dramatically in the interim.

The rocky road of the NLRB does not appear to be getting any smoother. This will mean employers and employees alike will need to carefully navigate their journey under the NLRA.