NLRB Attempts to Circumvent Noel Canning

08.11.2014

Last week the NLRB announced that it unanimously ratified numerous administrative and personnel actions it took when it lacked a constitutionally-valid quorum.  In June, the Supreme Court ruled in the Noel Canning decision that the recess appointments to the NLRB made by President Obama were invalid, and called into question case decisions and official actions taken by the agency during the 18-month period in which it lacked the needed quorum of three members.  The ratification is an attempt by the NLRB to circumvent the Noel Canning decision.

The ratification only covers actions, such as the appointment of certain Regional Directors, Administrative Law Judges and restructurings of regional and headquarters offices, and did not address the decisions rendered by the NLRB during the time period when the agency did not have a quorum. 

However, just weeks after the NLRB’s authorization, the Regional Directors whose appointments were unanimously affirmed and ratified by the NLRB also ratified not only all actions taken by them or on their behalf during the time in question, but also all actions taken by them in representation cases and unfair labor practice cases.  It remains to be seen whether there will be any legal challenges to the NLRB’s authority regarding blanket ratification.