[ARCHIVED] IW Labor Law Update

The National Labor Relations Board: A Status Report

Ronald Meisburg ǀ Partner ǀ Proskauer

September is a good time for manufacturing executives and HR professionals to take stock of the state of labor-management relations and where things are at the National Labor Relations Board.

There has been a lot of action in the courts the past year involving the NLRB. Much of it has involved a battle about whether the NLRB has had jurisdiction to issue decisions and take other actions over the last two years. If not, then nearly all of the board’s hundreds of decisions issued during that time may be invalid.

The basic problem is this: NLRB members must be nominated by the president and confirmed by the Senate. Sometimes this process breaks down because the Senate cannot agree whether to confirm certain nominees made by the president. Up until now, in these circumstances, it was thought that the president could wait for the Senate to go on recess. Then the president could make “recess appointments” to the NLRB. NLRB members who are recess-appointed can serve temporarily while the Senate makes up its mind about the president’s nominees.

That is what President Obama did in January 2012. But a soft drink bottling company, Noel Canning, raised complex and important questions about whether the Senate was actually in recess at that time. If it was not, then the president did not have the authority to make the recess appointments. A federal court in Washington, D.C., ruled in favor of Noel Canning and said the president’s recess appointments were not proper.

The same recess appointment issue has also been raised in dozens of other cases, including those involving industrial manufacturing and allied companies such as Huntington-Ingalls, Dresser Rand, RELCO, Daycon Products, Supply Technologies and Wellington Industries.

The issue is so important that the U.S. Supreme Court has decided to review the Noel Canning case. But there will probably not be a Supreme Court decision until the spring of 2014. Until then, decisions already issued by the NLRB since January 2012 (and perhaps back to April 2011) will be in limbo.

There is another big legal question looming about the authority of the board’s acting general counsel. A federal court in Washington state recently ruled that the acting general counsel had also been improperly appointed, under a law known as the Federal Vacancies Reform Act. If this decision is upheld and followed by other courts, the validity of legal proceedings initiated by the acting general counsel dating back to June 2010 might be brought into question.

The Senate has now confirmed five NLRB members who were recently nominated the president. Now that there is no doubt that the NLRB has a lawful quorum, we can expect the new board to begin issuing decisions and taking other actions, free from doubt about its constitutional authority. Undoubtedly, however, the fallout from the cases challenging the authority of the previous board and the acting general counsel will continue to serve as major distractions while they are being sorted out in litigation.

Nevertheless, we expect the new board to hit the ground running. Action can be expected to help make union organizing easier and broaden other statutory protections for employees, regardless of whether they have a union. These and other developments are important to industrial manufacturing and allied companies. We hope to keep you apprised of these and other employment related legal developments in this blog.

Ronald Meisburg is a Washington, D.C.-based lawyer and co-head of management-side law firm Proskauer’s  Labor-Management Relations Group. Before joining Proskauer, Meisburg served as general counsel of the National Labor Relations Board.

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