As Randi Klein Hyatt discussed recently, the Supreme Court’s decision in NLRB v. Noel Canning is expected to have significant ramifications for the NLRB (the “Board”) and the parties who previously appeared before the Board in 2012 and the first half of 2013, when the unconstitutional recess appointments of Members Block, Flynn and Griffin continued to leave the NLRB without a quorum. Richard Griffin, one of the three recess appointees who was since confirmed by the Senate as NLRB General Counsel on November 4, 2013, recently offered an updated perspective about what the decision is likely to mean.
According to Griffin, there were 98 appellate cases pending at the time of the Noel Canning decision that involved Members Block, Flynn and/or Griffin. (Former Member Craig Becker was validly appointed during an inter-session recess, according to the Supreme Court’s reasoning, such that the 34 cases challenging a Board quorum involving Becker do not appear to be affected on that basis.) Of these 98 cases, just over half (55) involved NLRB decisions that had already been filed in a circuit court. The NLRB has decided to file motions in every one of these cases requesting the court to return the Board’s decision to it for further review. In the remaining 43 cases, the Board has opted to modify or set aside its previous orders through unpublished decisions on a case-by-case basis.
Based on the Supreme Court’s reasoning, none of these 98 decisions, as they currently stand, have precedential value that can be relied upon by future litigants due to the lack of a quorum. Given that the Board no longer includes Members Block, Flynn, and Griffin, and that their three replacements (Members Hirozawa, Johnson, and Miscimarra) were confirmed only after extensive Senate compromise, it is least plausible that the Board will revisit some of these decisions. That being said, the current Board remains free to adopt the reasoning of these pre-Noel Canning decisions as persuasive, in essence repaving the same road many months later.
Griffin offered little clarification about the extent to which the Board’s other (non-circuit court) opinions would be reviewed. Litigants who seek to challenge or reopen these decisions are free and, in many cases, likely to do so. Therefore, it still appears that there will be a considerable added backlog for the Board as a result of the decision.
What about regional directors whose appointments were confirmed by the “quorumless” Board? Griffin stated that the Board has not yet taken a position on the validity of those appointments or the actions taken by those regional directors. Considering that many of the decisions such directors make have widespread impact on the workplace, it is not difficult to imagine that anything short of re-starting the appointment process will lead to future litigation on the subject.