With the Noel Canning v. NLRB decision of January 25, the NLRB finds itself in a unique position
… whistling in the darkness.
This U.S. Court of Appeals for the D.C. Circuit’s decision that President Obama’s recess
appointments to the NLRB are unconstitutional effectively invalidates all decisions and orders of
the National Labor Relations Board from January 3, 2012, through the present and until the
Board has three appropriately seated members. NLRB Chairman Pearce has said the Board will
continue to operate as usual. This puts the agency in the unenviable position of continuing to
operate knowing full well that every single ruling it makes could be nullified. Additionally, last
week, the same D.C. Circuit Court of Appeals ruled that it would postpone oral arguments
related to last year’s Chamber of Commerce’s challenge to the Board’s “quickie election” rule
change pending a final review of Noel Canning.
Many legal scholars have stated that the Noel Canning decision was very well reasoned and that
it is likely to survive a review by the Supreme Court. This should make many employers happy
since a large preponderance of cases decided by the NLRB is adverse to an employer’s interest.
While Obama has nominated the current “recess appointees” for Senate confirmation, it is
unlikely they will be confirmed because of their former ties to “Big Labor.”
The President has done a great disservice to his organized labor cronies … the people who have
uncompromisingly supported him along every step of his political ascent. An immobilized NLRB
reduces the time period during which unions can take advantage of their “friend” in the White
House. All of the recently decided cases involving issues such as email, social media, continuing
union dues deductions after a contract has expired, and affording unions the right to arbitration
over employee discipline in a newly organized unit of employees are all in limbo. Perhaps most
damaging will be the reality that successful union organizing campaigns certified by this “lame‐
duck” NLRB may be reversed.
As has lately been the case in far too many situations affecting the lives of Americans, this
important issue will soon be in the hands of “The Supremes.”
Best regards,
William R. Adams, Ph.D.
President & CEO
Adams, Nash, Haskell & Sheridan
1‐800‐237‐3942
wadams@anh.wpengine.com