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

(page 2 of 3)

Patel advised employers with business before the NLRB to raise an objection during enforcement actions stating that any board decisions since January 2012 that affect their cases should not be binding. The NLRB judge may overrule the objection, but actually making the objection would avoid an argument at a later appeal that the employer waived the issue. 

Kurlinski sees short-term and long-term questions. In the short term, employers who have been the subject of unfavorable board decisions could certainly appeal, citing the lack of a quorum. “If you have things pending before the board at this point, you certainly want to object to the board’s authority and preserve the arguments in this period of uncertainty,” she said. “In the short term, I think those are important implications for employers that are currently tied up with the NLRB.”

In addition, employers should follow established board procedures, even if they are in doubt, when appealing the administrative judge’s decision in a timely manner, Patel counseled.

Policy pause

Employers should not change their employment policies in response to this development. “It would be a big mistake,” Patel stated. “First, the NLRB enforcement attorneys and officers will continue acting as if the previous rules are still the standard. They can still pursue unfair labor practices, and the NLRB judges will likely look to the established standards. 

“Second, at some point, the board will get confirmed, and if it needs to, it will go back and simply vote that the previous decisions are now valid. So changing policies in response to the D.C. Court’s decision would be a short-term change that could result in NLRB enforcement actions.”

Patel also noted that legwork on enforcement actions is done by regional offices, enforcement attorneys, and the administrative law judges. If employers act as if nothing has changed, then any enforcement actions that go against the employer will go to the board for final approval. “So basically, the body (enforcement officials) will keep doing what it has so far, while the head (the board) will also behave as if it has authority to act.”

If employers are able to appeal their cases, they should still file with the D.C. Circuit. Patel acknowledged that in this scenario, employers would be betting that the D.C. Circuit’s decision will be affirmed by the Supreme Court, or that the Supreme Court will not take up the appeal. In either event, the Noel Canning decision would be a binding precedent for appeals filed with that particular court.

In that case, Patel said, employers would be in a much better position to challenge any new precedents or standards approved by the NLRB since January 2012, or to place board actions in limbo (such as the approval or reversal of administrative decisions that negatively affected the employer). “It’s hard for me, as a general opinion, to predict how advantageous it would be for an employer to have a board action placed back in limbo or back in the hands of the administrative law judge,” he added.

With the recess appointments judged invalid, President Obama has submitted the same candidates to the Senate for confirmation. They may or may not survive the Senate confirmation process, but the president still has nearly four years to fill the board. Kurlinski said that in the long term, businesses must adjust to the more aggressively pro-labor pattern the board has established with the president’s appointments. 

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