On Thursday, the United States Supreme Court issued its much-anticipated decision in NLRB v. Noel Canning, upholding the D.C. Circuit and finding that President Obama's three January 2012 "recess appointments" to the National Labor Relations Board ("NLRB") were unconstitutional. The Court's decision, while on narrower grounds than the D.C. Circuit's, will invalidate, according to some estimates, more than 1,000 NLRB decisions made between early January 2012 and late July 2013 and has serious implications for many employers.
Before turning to these implications, it is important to note what the decision does not impact. The decision does not mean there is currently no Board. A full Board was sworn in last August. This decision will also not impact the issuance of regulations calling for "quickie" union elections currently under consideration. It is possible, however, that action on this and other matters could be delayed while the Board decides what to do with the prior now-invalidated rulings.
For employers who were parties to the invalid decisions, the Supreme Court's decision may be bittersweet. An employer who lost an invalidated case will have another opportunity to argue its case in front of the Board; however, employers who won all or part of a prior case may find themselves having to reargue the matter. Given the impending back log of cases, cases pending before the Board will most certainly take longer than usual to resolve. Employers are urged to discuss their situation with counsel when determining how to proceed.
Employers will also need to decide what law to follow: the now-invalidated decision
or the law that existed before the invalidated decision came down. Given the make-up of the current Board, a cautious approach would be to presume that any pro-union or pro-employee decision will not change. A more aggressive approach would be to follow prior law until the current Board acts. A case-by-case approach is probably necessary to determine the best path forward.
Examples of cases where employers might prefer to follow the old rule pending rehearing by the Board would include:
- WKYC-TV—ability to cancel union dues check off at the end of a CBA;
- Piedmont Gardens—production of witness statements on an employer investigation;
- Banner Health Systems—whether an employer can require confidentiality of work place investigations;
- Costco—dealing with the scope of valid social media policies; and
- Hispanics United of Buffalo—legality of discipline for Facebook postings.
While there is no guarantee that the new Board will reach a different result upon reconsideration, at least one union-leaning Board member will see her term expire at the end of 2014, adding uncertainty to the make-up of the panels re-deciding these cases.
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