Labor Board 'On Heels' After Court Torpedoes Appointments
Bryance Metheny, with Burr & Forman in Birmingham, Alabama, is happy about the D.C. Circuit Court ruling last Friday that torpedoed President Obama’s recess appointments to the National Labor Relations Board.
He’s not advising his clients to celebrate just yet, however. Metheny expects the ruling will temper some of the board’s actions going forward. But he still expects what he calls an aggressive stance by the NLRB toward employers’ social media policies, a condition that he detailed in the January issue of Franchise Times.
The court called the appointments unconstitutional, and hence said the board lacked a quorum and so its rulings made since January 2012 are invalidated—technically, Metheny said, although what happens next is unclear. A new board, appointed with congressional approval, could decide to affirm the invalid board’s decisions, for example.
“I obviously as an employment attorney enjoyed reading it,” Metheny said about the decision in Noel Canning v. NLRB, which was opposite to an earlier ruling that upheld then-President George W. Bush’s right to make appointments during a congressional recess. (Yes, these things are political.) “Moving forward it would be much more difficult for a president to have extremely aggressive appointments to the board.”
Metheny is sure about one thing: “This is a positive development for employers, because at minimum it will blunt the aggressive agenda that the NLRB has been pushing for the last year. They’re kind of on their heels now.”