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NLRB Releases Its Blueprint for Re-issuing Noncontroversial Noel Canning-Invalidated Decisions
Practical Law Legal Update 7-578-4785 (Approx. 5 pages)
NLRB Releases Its Blueprint for Re-issuing Noncontroversial Noel Canning-Invalidated Decisions
by Practical Law Labor & Employment
| Published on 20 Aug 2014 • USA (National/Federal) |
in Mike-Sell's Potato Chip Co., the National Labor Relations Board (NLRB) re-issued a decision that was first decided on March 19, 2013 when the composition of the Board included two persons whose appointments were held constitutionally infirm under Noel Canning.
On August 15, 2014, in Mike-Sell’s Potato Chip Co., the panel (Board) heading the NLRB's judicial and election functions re-issued a decision and order in a matter it first decided on March 19, 2013 (359 N.L.R.B. slip op. 86, (Mar. 19, 2013)). The March 19, 2013 decision and order was invalid because the Board then was composed of two persons whose appointments were held constitutionally infirm under Noel Canning (see Article, Expert Q&A on Noel Canning and Its Aftermath and Legal Update, Supreme Court Holds 2012 Recess Appointments to the NLRB Were Invalid, Effectively Invalidates 20-Months of NLRB Decisions).
(361 N.L.R.B. slip op. 23, (Aug. 15, 2014).)
This decision and order and the NLRB's actions regarding the pending US Court of Appeals for the District of Columbia Circuit case about the underlying March 19, 2013 decision and order illustrate the NLRB's "playbook" for reissuing non-controversial decisions invalidated by Noel Canning.
On June 27, 2014, the Executive Secretary of the NLRB issued an unpublished order to retain jurisdiction over the Board's March 19, 2013 decision and order by a panel comprised of Chairman Pearce and recess appointees, Block and Griffin (Order, NLRB Case No. 09-CA-072637, (June 27, 2014)).
On approximately June 30, 2014, the NLRB moved the US Court of Appeals for the District of Columbia Circuit to dismiss its pending cross-application to enforce the March 19, 2013 decision and order (see Mtn. to Dismiss, Mike-Sell's Potato Chip Co. v. NLRB, D.C. Cir. Case No. 13-1139 (June 30, 2014)).
On August 15, 2014, the DC Circuit issued an order dismissing the NLRB's application for enforcement of the March 19, 2013 decision and order and remanded the matter to the NLRB (Order, Mike-Sell's Potato Chip Co. v. NLRB, D.C. Cir. Case No. 13-1139 (Aug 15, 2014).
On August 15, 2014, the same day that the DC Circuit remanded the matter to the NLRB, the Board issued this new decision and order, in which a panel comprised of Chairman Pearce and Members Hirozawa and Johnson stated that they:
- Reviewed the underlying administrative law judge’s (ALJ) recommended decision and order de novo.
- Adopted the ALJ's recommended decision and order for the reasons and rationale stated in the vacated March 19, 2013 decision and order, except that it modified the ALJ's recommended order to:
- include remedial language for the violation found, including a remedial provision regarding the tax consequences of making employees whole, in accordance with Don Chavas LLC, 361 N.L.R.B. slip op. 10, (Aug. 8, 2014) (see Legal Update, Expansive Backpay Awards from Invalid Board’s Latino Express Decision Survive: NLRB); and
- substitute a new notice to conform to the order as modified and Durham School Services, 360 N.L.R.B. slip op. 85, (Apr. 25, 2014) (see Legal Update, Discharge, Overbroad Social Networking and Off-duty Access Policies Compel New Union Election: NLRB).
- Incorporated the reasoning and analysis of the vacated March 19, 2013 decision and order by reference.
Member Johnson drafted a footnote, briefly noting his concurrence with the decision and order while disagreeing with the ALJ's analysis.
Practical Implications
In the wake of Noel-Canning, the Board is clearing a backlog of hundreds of decisions, including many fairly non-controversial matters, while continuing to decide new matters. Parties should expect that the decisions in the non-controversial remanded matters will:
- Include language nearly identical to this decision's.
- Include brief footnote-concurrences by any Board Member who did not participate in the original invalidated decisions and orders.
- Issue on the day or soon after the US Court of Appeals currently reviewing the Noel-Canning-invalidated decision:
- grants an NLRB motion to dismiss the NLRB application for enforcement of that decision; and
- remands the matter to the NLRB.
It is not clear:
- Why the NLRB decided to omit from its docket for this case that the DC Circuit dismissed its application for enforcement and vacated the original March 19, 2013 decision and order.
- Why the new Board decision and order notes that the March 19, 2013 decision and order was vacated, but does not explain how it came to be vacated.
- How the Board's new opinion can rely on the rationale or analysis of a vacated decision and order, since an opinion, once vacated, typically, by operation of law, becomes a nullity.