NLRB Acts in Response to Supreme Court’s Noel Canning Decision

The National Labor Relations Board has been busy since the Supreme Court’s June 26th Noel Canning decision trying to address the issues and uncertainty resulting from the Court’s holding that recess appointments of Board members on January 4, 2012, were invalid because the Senate was not actually in recess.  As we pointed out in our earlier post, this meant that numerous Board decisions from January 4, 2012 until August 5, 2013, because the Board lacked a quorum at the time that the cases were decided and many administrative actions, including appointments of Regional Directors, were also invalid.

The decisions in question included not only decisions in representation and unfair labor practice cases but many of the personnel and administrative actions that are the responsibility of the Board.

The Board announced yesterday that by unanimous decision it has took  “administrative action” on July 18, 2014, to “confirm, adopt and ratify nunc pro tunc all administrative, personnel and procurement matter approved by the Board or taken by or on behalf of the Board from January 4, 2012 to August 5, 2013, inclusive.”  The Board explains in the Minute of Board Action (pdf) that its purpose in so doing was “to remove any question that may arise concerning the validity of the administrative, personnel and procurement matters undertaken during that period.”

While the Board action does not relate to substantive decisions in cases, it includes the appointment of Regional Directors for the NLRB’s Regional Offices in Philadelphia, Tampa and Los Angeles, the appointments of 5 Administrative Law Judges and numerous internal agency restructuring decisions.

Still to come are the Board’s actions with respect to the numerous cases decided between January 5, 2012 and the Board’s achievement of a valid quorum in August 2013.  It will be interesting to see whether the Board shows the same level of unanimity when it is faced with the substantive labor law questions cast into doubt by Noel Canning.