In June 2014, the United States Supreme Court held in NLRB v. Noel Canning that all actions taken by the NLRB between January 2012 and August 2013 were invalid. The decision left employers speculating about the impact of the ruling and whether any of the Board’s extremely pro-employee decisions would be overturned.
In the wake of the high Court’s decision in Noel Canning, the NLRB stated that it would have to revisit roughly 100 cases decided during the period when Board seats were improperly filled by recess appointments. Many welcomed this announcement as a sign that the NLRB’s pro-union and pro-employee agenda would, at the least, be temporarily slowed during this period of review.
On August 4, 2014, the NLRB issued a press release stating that it had unanimously ratified all “administrative, personnel, and procurement actions” previously taken by the unconstitutionally constructed Board in order to “remove any question concerning the validity of actions undertaken during that period.” The press release specifically references ratification of the Board’s appointment of three regional directors, selection of numerous administrative law judges, and restructuring of multiple field offices and departments within the agency.
Following the Board’s authorization, the three newly-ratified regional directors ratified all actions taken by them from the dates of their appointments through July 18, including “all personnel and administrative decisions, all actions in representation case matters, and all actions in unfair labor practice cases.”
It remains to be seen whether this “quick fix” will be as effective as the NLRB suggests. One can expect that there will be challenges to whether such after-the-fact ratification is proper and that a number of parties affected by the newly ratified cases will continue to litigate the earlier decisions. Moreover, the Board’s press release fails to address the status of the 100 decisions issued by the NLRB that were invalidated by Noel Canningand are under review by the current Board.