By:  John J. Toner, Esq.

The Supreme Court today issued its much anticipated decision in NLRB v. Noel Canning, regarding the President’s authority to avoid the Senate’s confirmation procedure by granting recess appointments to fill  vacant positions. The decision specifically involved the legitimacy of the President’s recess appointment of Terence Flynn, Sharon Block, and Richard Griffin to be Members of the National Labor Relations Board. A unanimous Court found that those appointments were beyond the President’s authority and, therefore, unconstitutional.

As a result of the Court’s decision, NLRB decisions in which Block, Griffin, or Flynn participated will most likely be invalidated and will need to be reconsidered by the current Board, which already has a considerable backlog of pending cases and is devoting substantial efforts to issue the “quickie” election regulations. Among the decisions that the NLRB will have to revisit are those involving highly controversial issues such an employer’s ability to issue reasonable rules regarding employee behavior at work or to limit access to its facilities by off-duty employees; an employer’s obligation to continue dues deduction after expiration of the collective bargaining agreement; the duty to bargain discipline during first contract negotiations; confidentiality instructions to employees during employer investigations; and an employer’s obligation to provide a union with documents previously considered confidential.

In addition to the case decisions that now may be invalidated, any administrative actions in which Block, Flynn, or Griffin participated may also be invalid — including the appointments of Regional Directors and Administrative Law Judges. As a result, many decisions issued by these Regional Directors or Administrative Law Judges also may be invalid.

The total fallout from this important decision will not be known for some time and we will continue to monitor and advise you of recent developments. To be sure, however, no matter how extensive the repercussions ultimately extend, the decision is a tremendous victory for employers.