(Photo by Diego M. Radzinschi)
When the U.S. Supreme Court ruled by a unanimous decision that appointments to the National Labor Relations Board made during a recess period are invalid, reverberations were heard throughout the country.
Not only does Thursday’s ruling mean hundreds of decisions made during this time null and void, it also has ramifications for all employers in the months and years to come as it impacts the board’s ability to maintain focus on a pro-labor agenda.
The administration made appointments to the board to fill vacancies when the U.S. Senate was in a pro forma session—not in recess—claiming that for all intents and purposes, the Senate was not in session at all because it was not meeting and conducting business.
Thus, the NLRB remained “open for business” and proceeded to issue a series of new decisions, one of which was adverse to a family-owned bottling company called Noel Canning.
Noel Canning was in the process of contesting unfair labor practice charges. With an adverse ruling, the company took the case to the NLRB, which upheld the decision. The trio of board members making that decision included two who had just been appointed “over recess.”
Other factors came into play as the Supreme Court looked at various elements. The one that will impact employers in South Florida as well as across the nation is the uncertainty of the rulings made during the time that the invalid appointees presided.
Approximately 600 employers sustained adverse determinations from the highest level of the NLRB between January 2012 and July 2013.
Every one of these cases (many of which were controversial themselves) was decided by a board that lacked authority to act and are therefore null and void ab initio (i.e. from the beginning). Perhaps many will meet the same fate a second time around, but that is by no means a certainty with two new Republican members and four new members overall.
In rehearing these cases, some newly established panels can surely consist of two Republican members, in which case the fortunes of the parties could be inexorably altered. Consequently, the rubber stamp may not be utilized to the same degree this time around.
By the same token, the breadth of this decision now calls into question a host of additional cases decided from Aug. 27, 2011, to Jan. 3, 2012, to the extent that they too were quorum-deficient due to the participation of an improper recess appointee.
Individually, many businesses would not be directly impacted. Collectively, however, these developments could influence the course of labor relations on a much broader scale in the months to come.
If the board were forced to confront the daunting task of reevaluating a myriad of improperly decided cases issued over the past two years, it could get bogged down in exercises of retrospection that may forestall that agenda for quite some time.
Consequently, the implications of Noel Canning could ultimately prove to be far-reaching. Employers are urged to closely monitor developments at the NLRB as it adapts and responds to the high court’s decision.