In Noel Canning v. NLRB, the D.C. Circuit Court recently ruled that President Obama lacked the authority to make three recess appointments to the five-member National Labor Relations Board (NLRB), rendering the recess appointments unconstitutional. The ruling was based on the court’s finding that the appointments were procedurally flawed because the President bypassed the Senate’s “advise and consent” duty by making the appointments while the Senate was still in session. As a result of the Noel Canning decision, the NLRB now only has one duly-appointed board member and cannot take formal action because it lacks the three members required for a quorum. Additionally, the D.C. Circuit’s ruling effectively nullifies every case that has been decided by the NLRB since January 2012, including the following notable and controversial decisions:
Costco Wholesale Corp., 358 NLRB No. 106 (2012) (holding that employer's social media policy that prohibited electronic postings that "damage the Company, defame any individual or damage any person's reputation" unlawfully restricted employees' protected rights)
Karl Knauz Motors, Inc., 358 NLRB No. 164 (2012) (holding that employer's handbook rule prohibiting "disrespectful" language or "any other language which injures the image or reputation of the Dealership" was unlawful)
Banner Health System, 358 NLRB No. 93 (2012) (holding that employer violated the NLRA by asking an employee who was the subject of an internal investigation to refrain from discussing the matter while the employer conducted the investigation)
Sodexo America LLC, 358 NLRB No. 79 (2012) (holding that employer's off-duty access rule was invalid because the rule granted the employer "unfettered discretion" to determine which employees could access the facility while off duty)
Marriott Int'l, Inc., 359 NLRB No. 8 (2012) (holding that the employer's policy of prohibiting off-duty employees from accessing the employer's property without managerial approval was unlawful)
WKYC-TV, Gannett Co., 359 NLRB No. 30 (2012) (holding that an employer's duty to collect union dues from employees pursuant to a dues check-off provision continues even after the expiration of the collective bargaining agreement)
The NLRB, however, is not going down without a fight. Despite the D.C. Circuit’s ruling, the Chairman of the Board has publicly stated that the Board will continue to conduct business as usual. The NLRB will certainly challenge the D.C. Circuit’s ruling and the U.S. Supreme Court will ultimately decide whether the three recess appointments were lawful. Until the Supreme Court rules, the significance and legitimacy of decisions issued by the current NLRB will be questionable. With the assistance and advice of labor and employment counsel, employers should carefully navigate the body of NLRB law that is, at this point, in a state of flux.