Court Rules NLRB Appointments Unlawful, Calls Into Question 200 Decisions

In Noel Canning v. National Labor Relations Board (D.C. Cir., Jan. 25, 2013, 12-1115) 2013 WL 276024, the Court of Appeals for the D.C. Circuit ruled President Obama's January 4, 2012 recess appointments to the National Labor Relations Board were unconstitutional.   As a result, the NLRB's decisions since that time are now being called into question and may be unenforceable.  

The Recess Appointments Clause is part of the federal Constitution.  It says, "The President shall have power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."  This case was about what counts as "the Recess of the Senate" and what does not, with the President arguing the Senate was in recess on January 4, 2012 and the petitioner arguing it was not.  Ultimately, the Court decided the Senate was not recess, reasoning that "The Recess" means only breaks between official sessions of Congress and not other breaks during a session.  As a result, the Court found the Senate was not in recess on January 4, 2012 and the President's appointments to NLRB are therefore invalid.

The affects of the decision on unclear.  The NLRB's official position is that the ruling only applies in one case.  However, others believe it calls into question most of the NLRB's 2012 decisions, including several involving social media.

PERB Reaffirms Employers Must Negotiate Number of Affected Employees in Layoffs

In Salinas Valley Memorial Healthcare System (2012) PERB Dec. No. 2298-M, the Public Employment Relations Board reaffirmed and elaborated about employers' duty to negotiate with unions about layoffs related to labor costs.

PERB has held employers do not have to negotiate about the decision to layoff.  However, employers still have a duty to meet and confer with unions about the implementation, impacts, and effects of a layoff.  Some of the established layoff effects are post-layoff workload and safety and conditions of remaining employees.  This case clarifies what counts as implementation and impacts that the employer must meet and confer about.

Here, the employer initially said it wanted to layoff 79 people "at the end of the year."  The union demanded to meet and confer over the timing, number, identity of the employees to be laid off.  The employer claimed it did not have to meet and confer about those details, asserting a "management prerogative."  PERB rejected that claim.  PERB explained "the implementation (timing of the layoff, and the number and identity of  employees to be laid off) and the impact and effects on remaining employees, including workload and safety, were mandatory subjects for meeting and conferring prior to the implementation of the layoff."  As a result, PERB decided the union stated a prima facie case for an unfair labor practice.

CalPERS Sees Huge 13.3% Increase is Assets

The Sacramento Bee reports CalPERS beat forecasts and had another big year in investment returns, increasing the value of its portfolios by 13.3%.  The Bee reports CalPERS' stocks gained 17.2%, its real estate holdings went up 12.8%, and its private equity portfolio saw a 12.2% return.  CalPERS has been recovering strong from 2008-2009 when it saw significant losses because of the economy.  The 13.3% increase follows CalPERS' impressive 20.8% increase in 2011 and greatly exceeds the 4.5% estimate that Stanford relied on to make dire projections in December 2011.

Courts Finds Some Limits to Duty to Accommodate Disabled Peace Officers

In Lui v. City and County of San Francisco (2012) 211 Cal. App. 4th 692, the California Court of Appeal, First Appellate District, ruled it may not be discriminatory for a department to terminate a peace officer who cannot perform all the essential duties of an officer, when the peace officer’s limitations are due to a disability. After suffering a major heart attack, a 24-year veteran retired after he was informed by his department that there were no administrative positions available that did not require him to perform the strenuous physical duties regularly performed by patrol officers in the field. He then sued under California’s Fair Employment and Housing Act (FEHA) alleging discrimination and failure to accommodate. Following a court trial, judgment was entered in favor of the City and County of San Francisco and on appeal, the appellate court affirmed.

The San Francisco Police Department had a general order which stated that if an officer is assigned to an administrative position, he or she must be able to perform the essential functions of the full duty police officer, such as making forcible arrests, pursuing fleeing suspects and responding to emergency situations. The Court noted not all police officer positions exist for the purpose of enforcing the law and protecting the public and that officers in administrative positions are not frequently required to engage in strenuous duties. However, in this case, the Court said thse duties are essential functions of administrative positions because that department has a legitimate need to be able to deploy officers in administrative positions in the event of emergencies and other mass mobilizations.

Steinberg Announces Senate Public Safety Committee Members

California State Senate President pro Tem Darrell Steinberg announced today he is appointing Senator Loni Hancock (D-Berkeley) to chair the Senate Public Safety Committee.  The Senate Public Safety Committee is responsible for legislation changing criminal procedure, the Penal Code, and other criminal sanctions.  The other committee members will be Joel Anderson (R-Alpine), Marty Block (D-San Diego), Kevin de Léon (D-Los Angeles), Steve Knight (R-Antelope Valley), Carol Liu (D-Inland Empire), and Darrell Steinberg (D-Sacramento).  Sen. Hancock with also chair the budget sub-committee on Corrections, Public Safety, and the Judiciary.