On January 9, 2012, three recess appointments to the National Labor Relations Board (NLRB), made by President Barack Obama, were sworn into service. However, it has been determined that during the time the recess appointments were made, the Senate, who normally has to confirm presidential appointments, was not in a formally-declared recess. Instead, they were holding pro forma sessions during which they met every couple days and were conducting limited Senate business.
On January 25, 2013, the Court of Appeals for the District of Columbia ruled that the appointments made during that time were unconstitutional. The ruling of Noel Canning v. The National Labor Relations Board determined that the NLRB lacked a sufficient quorum in order to conduct proper business. In order for the NLRB to make rulings, it must have at least three valid appointments.
The ruling of this case will have a substantial impact on businesses across the country. While the ruling isn’t final — the President can appeal to the U.S. Supreme Court, and the Senate can change the rules concerning the appointment process — it does temporarily invalidate many controversial decisions made by the board since January 9, 2012. These rulings include such topics as:
- Termination of employees for postings to social media sites
- Witness statements made to the union, reimbursement of higher taxes paid due to back pay awards
- Continuation of dues check-off after expiration of a CBA
- Limitations on employee discussions of internal investigations
- Disregarding of employer arbitration procedures.
Many employers felt that the NLRB has overstepped its bounds by making rulings on cases that don’t normally concern the NLRB and aren’t thought of to impact an employee’s Section 7 rights under the National Labor Relations Act.
Check back to hscompanies.com often as we will be following appeals and rulings concerning this issue closely.
For more information on how these rulings could affect your business, contact H&S Companies HR Manager Travis Sinquefield.
Read the full text of the ruling.