How the NLRB Is Like Charlie Brown
If the National Labor Relations Board (NLRB) was a character in Peanuts, it would be Charlie Brown – “the lovable loser in the zig-zag t-shirt—the kid who never gives up (even though he almost never wins).” The Supreme Court just pulled the football from the NLRB again and invalidated approximately one and a half years of its decisions.
In NLRB v. Noel Canning, et al., the U.S. Supreme Court held that President Obama’s three recess appointments to the NLRB in January of 2012 were invalid because the Senate was not in recess long enough to make recess appointments necessary. The practical effect of this decision is that the opinions issued by the NLRB between January 2012, when the recess appointments were made, and July of 2013, when the Senate confirmed the President’s nominees, are likely invalid. This is because the NLRB needs a quorum of at least three members for an opinion to be valid. See New Process Steel v. NLRB, 130 S.Ct. 2635 (2010).
The overall effect of the Noel Canning decision is somewhat unclear. On one hand, the NLRB’s decisions from January of 2012 through July of 2013 are likely invalid due to lack of a quorum. On the other hand, the NLRB currently has a quorum and is similar in disposition to the NLRB during the now-invalidated time period. As a result, if the same issues come to the NLRB again in the near future, they will likely be decided the same way. In addition, to the extent that the now-invalidated NLRB decisions were based on valid precedent from the NLRB, the invalidation of the more recent NLRB decisions may not have much effect at all. Good grief.
Takeaway: The NLRB will probably never get the courage to speak to the Little Red-Haired Girl. The Noel Canning case creates some uncertainty, but it likely will not have a significant impact on employers.