Murtha Means More

NLRB “Recess Appointments” Held invalid: What Does It Mean For Employers?

January 30, 2013

On Friday, January 25, 2012, the United States Court of Appeals for the District of Columbia issued a decision holding that two of the current three members of the National Labor Relations Board (NLRB) were not properly appointed.

The court invalidated the Board’s decision. Political commentators on the right and the left immediately took to media outlets explaining how this was, depending on their political leanings, yet another example of the Administration’s defiance of constitutional checks and balances or yet another example of Republican obstructionism.

What employers really want to know, however, is "how does this impact us?" The immediate and probably long term, answer for most employers is "not too much." The NLRB’s Chairman issued a statement shortly after the decision indicating that the Board saw this decision as limited to a single case. It would continue business as usual. The Board will likely continue that way until either Congress and the Administration reach a political compromise or the U.S. Supreme Court decides the case. The Regional Offices of the NLRB will remain up and running with business as usual.

Decisions that the NLRB actually issues with these Recess Appointees might ultimately be invalidated. Some of these expanded rights of employees in certain areas - social media and investigation -confidentiality are two areas in which the Board was active in 2012. However, the NLRB went through a similar process a few years ago when the Supreme Court invalidated the procedure used on a year’s worth of cases. A reconstituted Board methodically reissued the vast majority of the decisions that had been invalidated.

Moreover, the law itself - the National Labor Relations Act - remains in force. The court’s decision might affect the speed and efficiency with which the Act will be enforced. Employees still retain the right to unionize and to engage in concerted activity over matters related to wages, hours and or terms and conditions of employment.

If you are in the middle of union negotiations, are currently defending an unfair labor practice charge, or are involved in a matter decided by the Board in 2012, you should discuss with your attorney the potential impact of this decision in your case. Otherwise, employers should continue following the National Labor Relations Act.

If you would like further information, please contact Hugh F. Murray at 860.240.6077 /hmurray@murthalaw.com, or Michael C. Harrington at 860.240.6049/mharrington@murthalaw.com.

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