Now loading.
Please wait.


Cleveland: 216-696-4441

Columbus: 614-224-4411

Z&R Press

News / PublicationsPressBNA's Health Law Reporter, July 2014
News / PublicationsPressBNA's Health Law Reporter, July 2014

Press and Media

Cleveland Jewish News
Consulting attorney early can be key in domestic violence case
June 17, 2022

Cleveland Jewish News
Custody cases deserve attention of attorney
April 22, 2022

Cleveland Jewish News
International case involving ‘get’ reaches Supreme Court
March 16, 2022

Cleveland Metropolitan Bar Journal
Women in Law
April 2020

Cleveland Jewish News
Supreme Court hears international residence case
December 13, 2019

The Spectrum, WCMH-TV NBC 4 – Video
Zashin & Rich International Child Custody Case to US Supreme Court
December 10, 2019

ABC 13 TV – Video
Supreme Court to hear international custody case involving Ohio mother
December 10, 2019
U.S. Supreme Court to hear international child custody dispute from Cleveland area
December 10, 2019

Case Western Reserve University School of Law
U.S. Supreme Court hears arguments in case briefed by CWRU law school faculty
December 9, 2019

Cleveland Jewish News
International residence case moves to US Supreme Court
June 21, 2019

Hollywood Life
Khloe Kardashian and Tristan Thompson’s Custody Case Could Get ‘Very Messy’: Lawyer Explains
February 27, 2019

2018 Ohio Super Lawyers
Cleveland family law attorney Andrew Zashin gets a 6th Circuit ruling that brings consistency to cases involving vulnerable children
November 8, 2018

Your Teen for Parents: Guide to Parenting through Divorce
Advocating for Yourself During a Divorce: 3 Tips from a Divorce Attorney
October 2018

Case Western Reserve University School of Law
Adjunct Professors Zashin, Keating and Reynolds take on path-breaking Hague Convention Case
June 21, 2018

2018 Ohio Super Lawyers
Family law attorney Andrew Zashin asks the 6th Circuit to bring consistency to cases involving vulnerable children
June 19, 2018

Cleveland Jewish News
Landmark international residence case could impact those making aliyah
June 14, 2018

WJR Detroit – Audio Interview
Attorney Andrew Zashin chats with Guy Gordon to discuss the new Illinois law for dogs when parents are getting a divorce.
January 2, 2018

Cleveland Jewish News
Surrogacy, child custody laws develop as cases arise
November 21, 2017

Smart Business Cleveland
2017 Smart Business Family Business Achievement Awards
September 2017

Crain's Cleveland Business
Ohio Employers Confront Marijuana Use
July 22, 2017

Lake View Cemetery Heritage ReView
Trustee Spotlight: Andrew Zashin
Spring 2017

Sports Illustrated
Lane Johnson's Bold Move To Sue His Own Union Is Rare, But Not Unprecedented
January 11, 2017

Packers Player Drops NFL Drug Suspension Dispute
December 19, 2016

Sports Business Daily
NFL, NFLPA Appoint Das As Third Arbitrator In Michael Pennel Lawsuit
December 5, 2016

Sports Business Journal
Eagles Lineman Challenges NFL and NFLPA in NLRB Filings
December 5, 2016

Eagles Lineman Says Suspension Violates Federal Labor Law
November 29, 2016

The Business of Sports with Andrew Brandt
RTAB #30: Lane Johnson's Legal Team (Audio Interview)
November 29, 2016

Cleveland Jewish News
Ohio Woman Receives Orthodox Divorce Decree
January 14, 2016

BNA's Health Law Reporter
Surprise! The NLRB Says You Just Might Be a 'Joint Employer'
September 24, 2015

BNA's Health Law Reporter
NLRB Adopts New Joint Employer Standard; Ruling Could Affect Health-Care Industry
September 3, 2015

BNA's Health Law Reporter
Challenge to NLRB Election Rule Fails; Employers Urged to Prepare New Game Plan
June 11, 2015

American Bar Association Section of Labor and Employment Law
Member Spotlight: George S. Crisci
April 13, 2015

The Plain Dealer
Attorney Goes To Bat for Northeast Ohio
January 18, 2015

Cleveland Jewish News
Profile on Andrew Zashin
January 15, 2015

"Here and Now" National NPR Show - Audio Interview
In A Divorce, Who Gets To Keep The Dog?
December 4, 2014

Crain's - Article and Video
Zashin & Rich embraces Cleveland roots and rock 'n' roll heritage
November 16, 2014

BNA's Health Law Reporter
Justices Reject NLRB Recess Appointments; Significant Health Care Decisions in Limbo
July 10, 2014

BNA's Health Law Reporter
The EEOC and FTC Turn Up the Heat on Employer Background Checks
April 2014

Zashin & Rich move marks big milestone
for E&Y Tower
November 2013
Zashin & Rich law firm leases last full floor of Ernst & Young Tower at Flats East Bank project
November 2013

Associated Press
US Claims Father Illegally Moved Kids to Gaza
May 2012

2012 Ohio Super Lawyers
Mentors | Andrew Zashin: Reminiscing About Robert Zashin
January 2012

CCH Employment Law Daily
NLRB NEWS - Controversy Erupts Over NLRB Recess Appointments
January 2012

Huff Post
Divorce's Impact On Small Businesses Can Be 'Immense'
October 2011

The Today Show - Video
Accused Facebook bigamist heads to court
September 2010

Facebook Busts Accused Bigamist - Woman Finds Her Prince Charming Has Married Another
July 2010

WKYC - Article and Video
Cleveland woman discovers husband's 'other' wife via Facebook
July 2010

Cleveland Jewish News
New custody center in Israel is Zashin’s passion
January 1, 2010

Worth Magazine
Top 100 Attorneys 2007
Andrew Zashin

Inside Business Magazine
Connecting Through Separation
Profile on Andrew Zashin
December 2007

Cleveland Jewish News
Valuing and dividing assets at the time of divorce
By Andrew Zashin, Esq.
February 2007

Case School of Law: In Brief
Plugged into Family, the Law, and Cleveland
Alumni Spotlight on Andrew Zashin
Spring 2005

Cleveland Magazine
The Divorcing Woman’s Best Friend
Feature Article Profiling Andrew Zashin
November 2004

Companies should consider coverage against employee-related claims
By Stephen Zashin | July 2004

ADR programs can save dollars and time
By Stephen Zashin | November 2003

COSE Update: Legal Ease
One Size Does Not Fit All
(Employment Practices Liability Insurance)
By Stephen Zashin

COSE Update: Legal Ease
Noncompete Agreements
By Michele Jakubs

COSE Update: Legal Ease
Ohio's 'Baby COBRA' Law
By Helena Oroz

BNA's Health Law Reporter

Justices Reject NLRB Recess Appointments; Significant Health Care Decisions in Limbo

July 10, 2014 | Download PDF

Reproduced with permission from BNA's Health Law Reporter, 23 HLR 903 (July 10, 2014). Copyright 2014 by The Bureau of National Affairs, Inc. (800-372-1033)

Justices Reject NLRB Recess Appointments; Significant Health Care Decisions in Limbo

The U.S. Supreme Court's June 26 decision that President Obama lacked the authority to make recess appointments to the National Labor Relations Board in January 2012 undermines the validity of hundreds of board decisions, rules, and other actions affecting health-care entities, attorneys told Bloomberg BNA (NLRB v. Noel Canning, 2014 BL 177533, U.S., No. 12- 1281, 6/26/14).

The ruling is especially significant for health-care employers because unions are active in the labor intensive health-care sector and a number of the NLRB decisions affected by the high court's ruling involved health-care providers (22 HLR 203, 2/7/13).

Although the exact impact of the decision on the NLRB, employers, unions and employees remains to be seen, the board is faced with resolving existing and future cases that may arise out of now invalid actions, including some of the most important and controversial rulings the board made in 2012 and 2013, attorneys said.

The White House's ability to push through healthcare agency nominees also could be compromised in the future if Republicans win control of the Senate in November, they added.

Holding that the president could not make ''recess'' appointments when the Senate was holding pro forma sessions, the high court clarified some ground rules for future recess appointments and made clear what many labor attorneys previously said they suspected: that myriad decisions and rules issued by the board between Jan. 4, 2012, and Aug. 5, 2013, are subject to challenge.

Decisions Invalidated.

Patrick J. Hoban, with Zashin & Rich, Cleveland, said that approximately 331 NLRB decisions were rendered invalid by the Supreme Court's ruling. In addition, ''to the extent that affirmation of Noel Canning undermines the legitimacy of former Member Craig Becker's appointment, it could be used as a basis for vacating another 109 NLRB decisions dating back to Aug. 28, 2011,'' he added.

''Some things after the Court's decision are certain: the NLRB will not be able to obtain enforcement of decisions issued by the unconstitutionally constituted NLRB; cases pending in federal courts regarding enforcement of NLRB decisions rendered during former Member Becker's recess appointment are subject to challenge based on Noel Canning; and the NLRB and federal courts have begun dismissing enforcement actions/vacating NLRB decisions in light of the decision,'' Hoban said.

Appointments Violated Constitution.

In a unanimous judgment, the high court affirmed a ruling of the U.S. Court of Appeals for the District of Columbia Circuit that an NLRB order was invalid. The board lacked a quorum because three of its five members were improperly appointed by Obama, the Supreme Court said, agreeing with the appeals court.

However, the high court divided 5-4 on important questions about the power of Obama and future presidents to make recess appointments to positions that normally require the advice and consent of the Senate.

''Many NLRB decisions impacted by the Supreme Court's ruling involve health-care industry employers or have important implications for them.''

Writing for the majority, Justice Stephen G. Breyer said the president may make appointments without Senate confirmation during recesses that occur either during or outside of Senate sessions, and is not limited to filling vacancies that come into being during a recess. But the president cannot act during Senate recesses of less than three days, and ''presumptively'' cannot make a recess appointment during a recess of less than 10 days, the court said.

Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan joined in the majority opinion.

Justice Antonin Scalia, joined by Chief Justice John G. Roberts, and Justices Clarence Thomas and Samuel A. Alito, concurred in the judgment, but wrote separately and disagreed with much of the majority's reasoning.

Scalia agreed the 2012 NLRB appointments were improperly made because the Senate was actually in session, but argued that the U.S. Constitution only gives the president the power to act without Senate confirmation during recesses that occur between sessions of the Senate, not during intrasession recesses.

The concurring opinion also agreed with the D.C. Circuit that the recess appointment power only applies to vacancies that arise during a Senate recess, and does not allow the White House to act during a recess on a vacancy that existed before the recess even began.

Vacancies Left Board Without Quorum.

Obama made the appointments to fill vacancies on the board that would have left the NLRB without a quorum to decide cases.

Becker, a Democrat, was given a recess appointment as a board member in 2010. Becker's recess appointment expired Jan. 3, 2012, at the formal end of the first session of the 112th Congress.

The Supreme Court held in 2010 in New Process Steel LP v. NLRB, No. 08-1457, 2010 BL 136207 (U.S. June 17, 2010), that the authority of the five-seat board cannot be exercised by a panel with fewer than three members.

Due to two vacant seats on the board, Becker's departure left the NLRB with only two members who lacked authority to decide cases under New Process Steel.

On Jan. 4, 2012, Obama announced recess appointments of Democrats Sharon Block and Richard F. Griffin and Republican Terence F. Flynn to serve on the board. Obama had nominated Flynn in January 2011, and nominated Block and Griffin on Dec. 15, 2011, but the Senate had not acted on the nominations.

The Senate had been holding pro forma sessions every three days for weeks before the president's action, and Republicans contended that the Senate was not in recess when the appointments were made.

D.C. Circuit Found Appointments Invalid

In 2013, a three-judge panel of the D.C. Circuit found that an NLRB order against Yakima, Wash., bottler Noel Canning would otherwise have been enforceable, but the president's recess appointments were unconstitutional (705 F.3d 490, 2013 BL 20942 (D.C. Cir. 2013)).

The NLRB asked the court to review the appeals court's reasoning on recesses and on the occurrence of a vacancy.

Noel Canning asked the court to consider and resolve a third issue—whether the president's recess appointment power may be exercised when the Senate is convening every three days in pro forma sessions as it was in early 2012. The court agreed to consider the additional issue (22 HLR 977, 6/27/13).

The high court heard oral argument in the case in January (23 HLR 99, 1/16/14).

Fallout Predicted.

Attorneys who spoke to Bloomberg BNA said that, while the specific implications of the high court's decision were uncertain, there was no doubt the impact will be significant. They noted that the board could—with the current, properly appointed board—reissue many of the affected decisions and rules, but that it was too soon to predict the full dimensions of the fallout.

NLRB Chairman Mark Gaston Pearce said in a statement the board is ''analyzing the impact that the Court's decision has on Board cases in which the January 2012 recess appointees participated.''

Pearce noted that the board now has ''a full contingent of five Senate-confirmed members who are prepared to fulfill our responsibility to enforce the National Labor Relations Act.'' The NLRB chairman said the board intends to resolve any cases affected by the Noel Canning decision ''as expeditiously as possible.''

Charles I. Cohen, senior counsel in Morgan Lewis & Bockius in Washington, confirmed that about 300 published NLRB decisions, as well as approximately 500 unpublished decisions, that were decided by the board between January 2012 and August 2013 depended on the votes of recess appointees.

In addition, Cohen noted, there are more than 100 cases pending in federal appellate courts, where the quorum issue was raised. Litigants in some of those cases may no longer have an interest in having them considered by the newly constituted five-member NLRB, but many will want to revisit the cases, and the board will allow them to do so, Cohen said.

Past Is Prologue?

The NLRB weathered a wave of cases returning to the board after the Supreme Court held in New Process Steel that the agency could not decide cases with fewer than three members on a panel, but Cohen said the situation after the Noel Canning decision is more serious.

Cohen said the ''universe'' of cases that could return to the board is much larger this time, and the cases have different characteristics. The board that decided cases from January 2012 to mid-2013 ''was not shy'' about addressing important and sometimes controversial cases, Cohen said, so some of the parties who litigated those cases are more likely to be interested in taking their cases back to the board in hopes of obtaining different outcomes.

Scott J. Witlin, a partner in Barnes & Thornburg, Los Angeles, told Bloomberg BNA that any party that lost a case at the board during the period when the 2012 recess appointees served may want a chance to have the case reconsidered. Witlin said the NLRB was seen as ''heavily partisan'' during that period, particularly when the resignation of Republican member Flynn left the board for a time with a 3-1 Democratic majority.

While the board issued some significant and controversial decisions in 2012 and 2013, returning the same cases to a board that now has a 3-2 Democratic majority makes ''major policy shifts unlikely,'' Witlin said. Nevertheless, he said, many parties in NLRB cases may conclude that a future change in board composition, or developments in the courts, will make another effort before the NLRB worthwhile.

Future Impacts.

Sources told Bloomberg BNA that the Supreme Court's decision could also limit the White House's ability to fill health-care agency vacancies if Republicans gain control of the Senate.

''Any employer in an industry that is heavily regulated—which certainly includes the health-care industry—is well advised to keep a close eye on administrative appointments and use its industry organizations to register its concerns about potential candidates,'' Hoban said.

''It also is a virtual certainty that decisions/authority of federal officers—potentially including federal judges—for whom the President made a recess appointment within or close to the parameters set forth by the Supreme Court in Noel Canning was unconstitutional, will be subject to challenge in federal court,'' Hoban said.

The decision isn't likely to affect how Congress operates in the coming months, because Obama appointees can be confirmed by a simple majority in the Democratic-controlled Senate. Should Republicans take control of the chamber after the midterm election, however, the ruling gives them a blueprint for shutting down any nominations that they don't like.

Health-Care NLRB Cases Impacted by Noel Canning Decision.

''Many NLRB decisions impacted by the Supreme Court's ruling involve health-care industry employers or have important implications for them,'' said Patrick J. Hoban, with Zashin & Rich, Cleveland. The first four are at issue only if former Member Becker's appointment is called into question, Hoban added.

  • Grane Healthcare Co., 357 NLRB No. 123 (Nov. 30, 2011) (private employer successorship to public
    employer bargaining obligations);
  • Avanti Health Systems, 357 NLRB No. 129 (Dec. 12, 2011) (successorship regarding the purchase of a
    community hospital);
  • Fremont Rideout Health Group, 357 NLRB No. 158 (Dec. 30, 2011) (employer no-access, solicitation and
    distribution policies);
  • D.R. Horton, Inc., 357 NLRB No. 184 (Jan. 3, 2012) (mandatory arbitration programs, class action waivers);
  • Northfield Urgent Care, 358 NLRB No. 17 (March 15, 2012) (restriction of employee communications);
  • El Paso Healthcare Center, 358 NLRB No. 54 (June 15, 2012) (post-certification Weingarten rights);
  • Quality Health Services of Puerto Rico, 358 NLRB No. 89 (July 25, 2012) (subcontracting bargaining
    unit work);
  • Costco Wholesale Corp., 358 NLRB No. 106 (Sept. 7, 2012) (employer policy that prohibits employees
    from making statements on social media that could damage the company or other employees' reputations
  • USC University Hospital, 358 NLRB No. 132 (Sept. 17, 2012) (unilateral implementation of employee
  • Knauz BMW, 358 NLRB No. 164 (Sept. 28, 2012) (employer policy proscribing employee messages and
    communications potentially critical of the company deemed unlawful);
  • The Finley Hospital, 359 NLRB No. 9 (Sept. 28, 2012) (continuation of annual pay increases after contract
  • WKYC-TV, Inc., 359 NLRB No. 30 (Dec. 12, 2012) (contractual dues deduction provisions continue after
    the expiration of a collective bargaining agreement);
  • Alan Ritchey, Inc., 359 N.L.R.B. No. 40 (Dec. 14, 2012) (employers must give notice and offer to bargain
    before enforcing discretionary discipline on employees of a newly-certified union);
  • Supply Technologies, LLC, 359 N.L.R.B. No. 38 (Dec. 14, 2012) (mandatory dispute resolution program
    that does not expressly state that employees retain the right to file NLRB charges unlawful);
  • Piedmont Gardens, 359 NLRB No. 46 (Dec. 15, 2012) (employer blanket policies protecting confidential
    employee investigation statements unlawful);
  • JAG Healthcare, Inc., 359 NLRB No. 88 (March 28, 2013) (successorship);
  • Gaylord Hospital, 359 NLRB No. 143 (June 26, 2013) (protected concerted activity in a non-union facility);
  • Trinity Continuing Care Services, 359 NLRB No. 162 (July 10, 2013) (unit managers are not statutory

Democrats have a slim 53-member majority in the Senate. Out of 36 Senate seats up for grabs in November, 21 belong to that party's members, while the remaining 15 are held by Republicans.

Reporter by Lawrence E. Dube´, Chris Opfer, Cheryl Bolen, and Peyton M. Sturges
Editor: BarbaraYuill
Text of the opinion is available here.