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Labor Law in Limbo: Despite a stinging court defeat, the NLRB isn't backing down

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Anyone who thought a recent federal court beat-down would chasten the National Labor Relations Board – and give employers some room to breathe – got a rapid-response “not so fast” from NLRB Chairman Mark Gaston Pearce.

The NLRB’s determination, based on the conviction the ruling has only limited application, was but the latest act in an unfolding legal drama that has most employers in limbo as they decide how much legal weight to give to dozens of decisions made by the NLRB since January of 2012.

The unanimous decision, issued by the U.S. Court of Appeals for the D.C. Circuit in Noel Canning v. the NLRB, found that the Jan. 4, 2012, recess appointments of three members to the NLRB were invalid because they were not actually made while Congress was in recess. The ruling drew cheers from business groups, but it didn’t take long for Pearce to rain on their parade.

In Noel Canning, a Washington state Pepsi bottler challenged an NLRB decision on the grounds that the recess appointments were invalid and therefore the board did not have the three-member quorum required to make decisions. Pearce’s response indicates that employers should probably proceed as though the NLRB had not been rebuked:

“The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals. In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.”

While the validity of the aforementioned NLRB rulings is still in question, employers with business before the board should proceed with caution, and businesses in general should abide by pre-2012 rulings on social media, according to Nilesh Patel, principal attorney, Mahadev Law Group, and Margaret Kurlinski, an attorney with Godfrey & Kahn. Their counsel was directed at both union and non-union workplaces.

Kurlinski noted that in past presidential administrations, the National Labor Relations Act, which the NLRB enforces, was something non-unionized private-sector employers paid little attention to. “If they didn’t have a union, they weren’t concerned about it,” Kurlinski said, “but the act has always applied to every employer. Every employee has the right to engage in mutual aid and protected concerted activity, but it just hasn’t been aggressively pursued by the board, and now we’re in a whole new world where the board is pretty active.”

Isolated case?

Patel said that, technically, the D.C. Court’s decision should invalidate decisions made by the NLRB since January 2012, but the board is not acting as if the decision is binding, except for in that one case. Under normal circumstances, Patel would advise employers negatively affected by the board’s previous decisions to appeal them if possible, and appeal to the same D.C. Circuit.

However, the D.C. Circuit has given the government time to consider appealing its Noel Canning ruling to the U.S. Supreme Court; in the meantime, it put all NLRB appeals on hold. By Patel’s count, there are 38 cases on hold, and some of them were major cases that overturned legal precedent or established new standards.

(Editor’s note: On March 12, the National Labor Relations Board decided not to seek an en banc (full bench) rehearing in Noel Canning v. NLRB. The board, in consultation with the Department of Justice, intends to file a petition for certiorari with the United States Supreme Court for a review of that decision. The petition for certiorari, which asks the nation’s high court to review the Noel Canning decision, is due on April 25.)

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