Wiping the NLRB Slate Clean?

The Impact of National Labor Relations Board v. Noel Canning

The National Labor Relations Board (NLRB) is an incredibly busy agency of the U.S. government. It administers the National Labor Relations Act (NLRA) and makes hundreds of decisions every year. The rulings in these decisions then set a precedent for future decisions, effectively contributing to the law of the employer-employee landscape. So what would happen if 19 months of rule-issuing, decision-making, precedent-setting and other administrative actions by the NLRB suddenly became invalidated? How would this impact employers and employees who were either positively or adversely affected by those decisions, or had been following those rules and precedents? What would be the current state of the law? We’re in the process of finding out.

The NLRB is appointed by the president of the United States and confirmed by the Senate. It is intended to have five members, but needs at least three for a quorum. A quorum isthe minimum number of members needed to conduct the business of the agency.In January 2012, there were only two members of the NLRB. As a result, President Obama made recess appointments to the board, so that the agency could reach a quorum and conduct its normal activities. These appointments were never confirmed by the Senate. Nonetheless, the NLRB conducted business as usual for over two years. But 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 be invalid. This means that for the period between January 4, 2012 and August 5, 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.