In the Wake of a U.S. Supreme Court Loss, the NLRB Ratifies Certain Prior Agency Actions

NLRB 1 (2)BY:  TIMOTHY C. HAUGHEE

AUGUST 26, 2014

The 20-month long saga regarding the validity of agency actions taken by the National Labor Relations Board (NLRB) appears to be reaching its conclusion. As we previously wrote, in June 2014, the U.S. Supreme Court held that President Obama’s recess appointments of three (3) NLRB members in January 2012 exceeded his constitutional authority. As a result of that ruling, hundreds of decisions rendered by the NLRB after the recess appointments, including decisions addressing social media in the workplace and at-will employment statements included in employee handbooks, were rendered invalid.

However, on August 5, 2013, the NLRB properly regained a quorum after the United States Senate confirmed five (5) new Board members.   On July 18, 2014, following the U.S. Supreme Court’s decision, the NLRB announced that it had ratified all “administrative, personnel, and procurement matters” taken by the Board from the date of the invalid recess appointments through August 5, 2013. In addition, the Board authorized the selection of three (3) Regional Directors, each of whom subsequently ratified all actions taken by them or on their behalf from the dates of their initial appointments through July 18, 2014. Those decisions include all actions in representation case matters and all actions in unfair labor practice cases. A copy of the NLRB’s July 18, 2014 Minute of Board Action can be obtained here.

Notably absent from the NLRB’s announcement, however, is a statement that the Board ratified all Board decisions during the time period when the Board did not have a lawful quorum. It appears likely, however, that the Board will ultimately ratify those decisions in a subsequent announcement. That ratification, though, could later be challenged by parties litigating with the Board.

We will continue to provide timely updates as this NLRB issue develops.

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