NLRB lacked quorum to act
In NLRB v. Noel Canning, the Supreme Court held that President Obama’s appointments of three National Labor Relations Board members in January 2012 during a three day intra-session Senate recess were unconstitutional because the recess was too short. The invalid appointments rendered the Board without a quorum to act between January 2012 and August 2013.
The Supreme Court’s analysis almost certainly renders hundreds of Board decisions unenforceable, erasing 18 months of controversial Board precedent. The current Board, which remains friendly to labor interests, has promised to resolve affected cases “as expeditiously as possible.” We will monitor the Board’s reaction, including whether it will seek to revisit – and potentially affirm - each of the invalid decisions.
Decisions affecting confidentiality, social media policies affected by ruling
The Board’s DirecTV decision in late 2012 invalidated work rules protecting company information and employee privacy as “broad” and chilling of Section 7 rights. The decision was a dramatic illustration of the Board’s emphasis on non-unionized employers and the ease with which it was willing to invalidate work rules, even when the rules were never intended to prohibit protected activity. Click here for our prior alert on this decision. Depending on whether the Board revisits this decision, employers may have greater leeway in enforcing similar rules designed to protect company information and employee privacy, including disciplining employees for conduct on social media.
Attempted departure from decades of precedent put on hold
In late 2012, the Board issued several decisions departing from decades of precedent, including requiring employers to continue dues check-off after contract expiration and eliminating a bright line test for confidentiality of witness statements. Click here for our prior alert on these decisions, all of which are almost certainly no longer binding precedent. The decisions represented the Board’s aggressive departure from many well established and previously lawful practices. It remains to be seen how the properly constituted Board will treat these issues.