On August 4, 2014, the National Labor Relations Board announced that it had ratified all of the “administrative, personnel, and procurement matters taken by the Board from January 4, 2012 to August 5, 2013“. This coincides with the time period during which the Supreme Court’s Noel Canning decision held the Board operated without a proper quorum. Moreover, the Board’s July 18, 2014 meeting minutes specifically indicate the Board sought to endorse
- the appointment of Regional Directors in Region 4 (Philadelphia); Region 12 (Tampa); and Region 31 (Los Angeles);
- the selection of Kenneth Chu, Christine Dibble, Melissa Olivero, Susan Flynn, and Donna Dawson as Administrative Law Judges;
- the restructuring of various Field Offices; and departments within Headquarters’ Offices; and
- some modifications to the General Counsel’s authority and responsibilities.
As we reported yesterday, the Board also announced that following the Board’s authorization, the three Regional Directors affected purported to “ratif[y] all actions taken by them or on their behalf from the dates of their initial appointments and July 18, 2014… [including] all actions in representation case matters, and all actions in unfair labor practice cases.”
The action taken by the Board on July 18, 2014, and announced this week, may very well put to rest the prospective authority of these Regional Directors to act; and it may be doubtful now that anyone challenges their tenure credits, or the personnel and office supply purchasing decisions during these time periods. But it is a virtual certainty that parties impacted by actual RC and CA proceedings undertaken in these Regions from January 4, 2012 until July 18, 2014 will continue to challenge the Board’s actions therein. Former NLRB General Counsel Ron Meisburg has opined likewise to Reuters:
“It remains to be seen, however, whether it will in fact resolve all the issues. I suspect a number of parties will continue to litigate and test whether the board’s ratification is effective.”
While this announcement definitely provides some certainty from July 18, 2014 forward, there still remains “a lot of omelet unscrambling to be done” with respect to agency action during the period impacted by the Noel Canning decision.
More on the issue:
- “NLRB ratifies actions of unconstitutional Board” — The Hill
- “U.S. labor board backs personnel actions from time without quorum” — Reuters
- “NLRB Ratifies Actions Affected by Noel Canning Ruling” — Legal Times
- “NLRB Ratifies Actions of Noel Canning-Era Board” — LexisNexis